Dept. of Env. v. Assateague Coastal Trust

299 A.3d 619, 484 Md. 399

• Court: Court of Appeals of Maryland
• Decided: August 9, 2023
• Docket: 11/22
• Status: Published

Opinion

Maryland Department of the Environment v. Assateague Coastal Trust, No. 11, September Term 2022, Opinion by Booth, J.

Environmental Law – Administrative Law – Clean Water Act – Maryland Water Pollution Control Laws.

Under the Clean Water Act, 33 U.S.C. § 1251, et seq. and Maryland’s water pollution control law, Title 9, Subtitle 3 of the Environment Article of the Maryland Code, the Maryland Department of the Environment (“Department”) has the authority to issue general discharge permits upon a determination that the discharge meets all state and federal water quality standards.

After the Department published a Final Determination to reissue, with modifications, a general discharge permit for Animal Feeding Operations (“AFOs”) (“2019 General Permit”), Assateague Coastal Trust (“Assateague”) filed a petition for judicial review alleging that: (1) the Department’s failure to include water quality based effluent limitations violates the Clean Water Act and Maryland’s water pollution control law; and (2) the Department either has not regulated ammonia emissions at all, or alternatively, if ammonia emissions are included with the permit conditions, the conditions are insufficient.

The Maryland Supreme Court holds that:

1. The Department’s AFO general discharge permit framework—which addresses water quality standards by requiring technology based effluent limitations in the form of best management practices that are prepared for a particular facility based upon site specific conditions, while retaining discretion in the Department to impose additional water quality controls where they are necessary to protect and maintain water quality standards of a particular waterway—is reasonable, and is consistent with federal and state law.

2. There is substantial evidence in the record to reflect that the Department not only acknowledges its authority to regulate ammonia emissions and air deposition through the 2019 General Discharge Permit, but that it has, in fact, exercised this authority by requiring best management practices to address ammonia emissions where they are determined to be a resource concern. The Department’s decision to evaluate each AFO individually and to require appropriately tailored best management practices to control these emissions where they present a real risk of discharge, is reasonable and falls within the discretion afforded to the Department by the Legislature under the State’s water pollution control law. Circuit Court for Montgomery County Case No.: 482915V Argued: November 3, 2022 IN THE SUPREME COURT OF MARYLAND*

No. 11 September Term, 2022

MARYLAND DEPARTMENT OF THE ENVIRONMENT

v. ASSATEAGUE COASTAL TRUST

Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves,

JJ.

Opinion by Booth, J. Watts, J., dissents.

Filed: August 9, 2023

* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Maryland. The name change took effect on document is authentic. December 14, 2022. 2023-08-09 10:57-04:00

Gregory Hilton, Clerk This appeal concerns judicial review of the most recent iteration of a general

discharge permit that the Maryland Department of the Environment (the “Department” or

“MDE”) issued to Animal Feeding Operations (“AFOs”) in connection with its authority

to issue water pollution control permits under the federal Clean Water Act1 and Maryland’s

water pollution control law.2 The current iteration of this general discharge permit for

AFOs was finalized by the Department pursuant to certain statutory requirements under

federal and state law, which require that the Department review and issue or reissue water

pollution control permits every five years.

After the Department published its Notice of Final Determination to reissue with

revisions the general discharge permit for AFOs (the “2019 General Permit”), Assateague

Coastal Trust (“Assateague”) filed a petition in the Circuit Court for Montgomery County

seeking judicial review. After the circuit court vacated the permit and remanded the matter to

the Department with instructions to incorporate certain water quality standards into the permit,

the Department filed an appeal to the Appellate Court of Maryland.3 While the case was

1 Codified generally as 33 U.S.C. §§ 1251–1389 (2018). 2 Maryland Code, Environment (2014 Repl. Vol., 2022 Supp) (“EN”) Title 9, Subtitle 3. 3 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. pending in that court, Assateague filed a petition for writ of certiorari. We granted the petition

to consider the following questions, which we have reordered and rephrased as follows:4

1. Whether the Department’s Final Determination to issue the 2019 General Permit was reasonable and complied with the water quality standards established under the Clean Water Act and the State’s water pollution control law.

2. Whether the Department’s permit conditions in the 2019 General Permit that address AFO ammonia emissions were reasonable and complied with the water quality standards established under the State’s water pollution control law.

Ultimately, we answer both questions “yes” and uphold the Department’s Final

Determination.

I.

Statutory Background

Before we turn to Assateague’s arguments in support of its challenge to the 2019

General Permit that is the subject of this matter, it is useful to provide an overview of the

applicable federal and state laws and regulatory framework. We discuss below the Clean

4 The questions presented in the petition for writ of certiorari are:

1. Whether the Maryland Department of the Environment (“MDE”) erred in issuing a General Discharge Permit for Animal Feeding Operations without including controls for ammonia emissions, when Maryland water pollution control laws unambiguously require regulation of ammonia emissions[.]

2. Whether the Clean Water Act and the more stringent Maryland Water Pollution Control laws require water discharge limitations that take into account impaired receiving waters (i.e. water quality-based effluent limitations) where effluent limitations based solely on minimum levels of treatment achieved by technology are ineffective[.]

2 Water Act and Maryland’s water pollution control law, the general permitting scheme for

water pollution discharge permits under both federal and state law, as well as the specific

federal and state regulations that govern discharge permits for concentrated animal feeding

operations (“CAFOs”), as well as other types of AFOs.

A. The Federal Clean Water Act

1. NPDES Permitting Scheme Congress enacted the federal Clean Water Act in 1972 “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

Among its core provisions, the Clean Water Act prohibits the “discharge of any pollutant”5

to waters of the United States, except as authorized by a permit issued under the National

Pollution Discharge Elimination System (“NPDES”). 33 U.S.C. §§ 1251(a)(1), 1311(a),

1342(a)(1). An NPDES permit places limits on the type and quantity of pollutants that can

be released into the Nation’s waters. These limits are called “effluent limitations.”6 The

U.S. Environmental Protection Agency (“EPA”) is authorized to issue and enforce these

permits. 33 U.S.C. §§ 1319, 1342(a)(1).

5 The term “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). A “point source” is defined as “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, [or other type of conveyance], from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). 6 “Effluent limitation” is defined as “any restriction . . . on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters.” 33 U.S.C. § 1362(11).

3 The Clean Water Act authorizes the EPA to delegate its NPDES permitting

authority to a state. 33 U.S.C. § 1342(b). This regulatory approach enables the federal and

state water pollution permitting laws to work in tandem with one another.

33 U.S.C. § 1342(b). State law must be at least as stringent as the provisions of the Clean

Water Act; however, a state has the ability to impose more stringent pollution control laws

as it desires. 40 C.F.R. §§ 122.44(d), 123.25(a).

State permits must be fixed for terms not exceeding five years and are subject to EPA

review. 33 U.S.C. § 1342(b)(1); 40 C.F.R. § 123.44. After a state submits a permit for

review, the EPA may make objections or recommendations to the proposed permits.

40 C.F.R. § 123.44. States must take action to eliminate the EPA’s objections.

40 C.F.R. § 123.44. Maryland is among the states authorized to issue NPDES permits.7 The

Department administers both the federal and state water pollution permitting programs.8

Under both federal and state laws, water pollution discharge permits can take one

of two forms. The first type is an “individual discharge permit,” which is written to reflect

site-specific conditions of an applicant discharging to a designated body of water. The

permit terms, conditions, and limitations are based upon extensive information submitted

in the application and are unique to that discharger. See 40 C.F.R. § 122.21; COMAR

7 See U.S. EPA Memorandum of Agreement with the State of Maryland for NPDES, May 18, 1989; available at https://perma.cc/4978-DSU9; see also Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, 268 F.3d 255, 265 (4th Cir. 2001). 8 See EN § 9-323 (stating that water pollution discharge permits are issued by the Department) and COMAR 26.08.04.07A. (stating that “[t]he Department shall administer the National Pollutant Discharge Elimination System (NPDES) program as part of its own discharge permit system”). 4 26.08.04.02–.07. An individual discharge permit allows specific effluent limitations based

on many factors, including the type of industry or operation, the technology available,

pollutant constituents, and the characteristics of the receiving body of water. Id.

The second type of discharge permit—which is the type at issue here—is a “general

discharge permit,” which may be issued for a particular industry or category of discharges

when they are susceptible to regulation under common terms and conditions. See 40 C.F.R.

§§ 122.28(a), 123.25; COMAR 26.08.04.08.–.09. General discharge permits include

conditions and other eligibility requirements that all facilities must meet to obtain coverage

under the general permit. Id. Prior to discharging, the operator must file a notice of its

intent to discharge in compliance with the general permit. 40 C.F.R. § 122.28(b)(2);

COMAR 26.08.04.09N(3)(a). The specific classes or categories of discharges authorized

by a general permit are determined at the regulatory agency’s discretion.

40 C.F.R. § 122.28(a)(2)(ii)(E); COMAR 26.08.04.08A(4). As we will discuss in more

detail herein, the EPA and MDE have both chosen to regulate CAFOs under general

discharge permits. 40 C.F.R. § 122.23; COMAR 26.08.04.09N.

2. Pollution Controls in Permits Under the Clean Water Act, “water quality standards” are the benchmark for clean

water. 33 U.S.C. § 1313(b); Maryland Dep’t of the Env’t v. County Comm’rs of Carroll

County, 465 Md. 169, 186 (2019). These standards are established under the Act as

follows. First, states assess the surface waters within their jurisdiction to determine the

known or desired uses for each water body’s “designated use” (e.g., public water supply,

fishing, recreational use). 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 130.3, 131.6; COMAR

5 26.08.02.01.–.03. The states then establish a water quality standard for any pollutants of

concern to reflect the ambient water quality needed to support the known or desired uses.

Id. All water quality standards proposed by the states are subject to EPA review, and if the

EPA does not approve them, the EPA will set the standards itself. 33 U.S.C. § 1313.

To achieve water quality standards, the Act requires that discharge permits include

pollution controls for point sources. 33 U.S.C. § 1311(b). “The Act calls these controls

‘effluent limitations’—‘effluent’ being the material discharged by a point source.” Carroll

County, 465 Md. at 186. “Effluent limitations may be ‘technology based’ or ‘water quality

based.’” Id. We describe the differences between these two types of effluent limitations

below.

a. Technology Based Effluent Limitations.

“Technology based effluent limitations are generally the first round of controls in the

effort to achieve water quality standards.” Id. (citing 33 U.S.C. § 1311(b)(1)(A)). They

“represent the minimum level of control that must be imposed in a permit[.]” 40 C.F.R.

§ 125.3(a). The Clean Water Act directs the EPA to issue nationally applicable effluent

limitations or guidelines for classes or categories of point sources. 33 U.S.C. § 1314(b).

These guidelines—often referred to as “ELGs”—consist of industry-specific, technology

based effluent limitations, which require the use of “best practicable control technology

currently available” that will result in reasonable progress toward the national goal of

eliminating the discharge of all pollutants. See 33 U.S.C. §§ 1311(b)(1), 1314(b)(1). If

technology based effluent limitations are not sufficient for a particular water body to meet or

exceed the water quality standard, the Department is required to impose more stringent

6 controls—“water quality based effluent limitations,” often referred to as “WQBELs”—for

those receiving water bodies. 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 130.7(c).

b. Water Quality Based Effluent Limitations. Water quality based effluent limitations are numerical limitations based on the

amount and kind of pollutants in a particular water body affected by a particular discharge

and are more stringent than technology based effluent limitations. 33 U.S.C.

§ 1311(b)(1)(C); 40 C.F.R. § 130.7(c); see also Carroll County, 465 Md. at 187. To

determine if more stringent controls are needed, states are required to identify any bodies

of water within their boundaries where the first round of controls—technology based

effluent limitations—are inadequate to achieve or maintain the established water quality

standard. 33 U.S.C. § 1313(d)(1)(A).

We recently observed that the two types of effluent limitations “differ in their

reference point and in their strategies for reducing pollution.” Carroll County, 465 Md. at

187. We explained that

[f]or technology based limitations, the reference point is the source, and the strategy is to deploy pollutant-reducing technology at that source regardless of its contribution of pollutants to the waterway. By contrast, for water quality based effluent limitations, the reference point is the waterway, and the strategy is for the point source to implement any additional actions (beyond the already required technologies) necessary to achieve the applicable water quality standard.

Id. at 187–88 (footnotes omitted). Because water quality based effluent limitations are tied

to water quality standards of particular waterways, it is useful to discuss the requirement

under the Clean Water Act for states to develop a list of impaired waterways and the EPA’s

7 regulations for establishing Total Maximum Daily Loads or “TMDLs” in connection with

impaired waters.

3. Total Maximum Daily Loads (“TMDLs”)

An important element for determining the conditions that may appear in a discharge

permit is what is known as the TMDL. Carroll County, 465 Md. at 190. A TMDL is a

numeric measure representing the maximum amount of a pollutant that a particular body

of water can receive without violating water quality standards. 33 U.S.C. § 1313(d)(1)(C);

NPDES Permit Writers’ Manual (Sept. 2010), at 6-11. A water body’s TMDL serves as

an informational tool to assist regulators in controlling water quality. But “the acronym

‘TMDL’ has come to refer to more than just a numeric measure of a pollutant.” Carroll

County, 465 Md. at 190. It also refers to the “process and calculations used to determine

that level of a pollutant and its allocation among various sources of the pollutant.” Id.

“The document in which an agency calculates the TMDL [for a particular waterway], in

the sense of a numeric measure of a pollutant, and allocates that level among various

sources of pollution is also sometimes referred to as a ‘TMDL.’” Id. We will discuss

TMDLs as a numeric measure and as a process in turn.

a. TMDL as a Numeric Measure.

“The EPA has elaborated on the meaning of TMDL as a numeric measure of

pollution in its regulations.” Carroll County, 465 Md. at 191. The term “load” refers to a

measure of water pollution. See 40 C.F.R. § 130.2(e) (defining “load” as “[a]n amount of

matter or thermal energy that is introduced into a receiving water”). TMDL is defined in

regulation as “the sum of” amounts of the relevant pollutant emanating from various point

8 and nonpoint sources9 together with a “natural background” amount of the pollutant and a

“margin of safety.” 40 C.F.R. §§ 130.2(i), 130.7(c)(1). “To understand this definition of

a TMDL as a numeric measure [also] requires an understanding of the TMDL process.”

Carroll County, 465 Md. at 191.

b. TMDL as a Process

The EPA and states work together to establish TMDLs in what has been described

as a form of “cooperative federalism.” Maryland Dep’t of the Env’t v. Anacostia

Riverkeeper, Inc., 447 Md. 88, 101 (2016) (citing American Farm Bureau v. EPA, 792 F.3d

281, 289 (3d Cir. 2015); Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d, 210,

214–17 (D.D.C. 2011)). Establishing TMDLs is a multi-step process.

The first step in the process is that a state must establish water quality standards for

impaired waterways. Anacostia Riverkeeper, 447 Md. at 101; see also American Farm

Bureau, 792 F.3d at 289 (explaining that TMDLs arise after a state enacts water quality

standards pursuant to its laws as required by the Clean Water Act). After setting water

quality standards, the second step is that states must establish effluent limitations in

discharge permits—which is the primary way to meet water quality standards because

effluent limitations restrict the discharge of pollutants. See 33 U.S.C. § 1362(11). The

9 Pollutants come from both point and nonpoint sources. As previously noted, the Clean Water Act defines a point source as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel . . . or [other type of conveyance], from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Nonpoint sources come from dispersed areas “where water runs off the land without being collected or channeled into a point source.” Maryland Dep’t of the Env’t v. County Commr’s of Carroll County, 465 Md. 169, 184 (2019) (footnote omitted). 9 third step in the TMDL process is based on the direction in the Act that each state identify

waterways for which technology based effluent limitations are not achieving water quality

standards. Carroll County, 465 Md. at 191 (citing 33 U.S.C. § 1313(d)(1)(A)).

“If water quality standards are not being met in a waterway due to excess levels of

a particular pollutant, the state is to determine the maximum amount of that pollutant that

the waterway can receive without violating water quality standards—i.e., the TMDL for

that pollutant as to that waterway.” Carroll County, 465 Md. at 191 (citing 33 U.S.C.

§ 1313(d)(1)(c)). “The resulting TMDL—as a cap on the pollutant—is sometimes referred

to as a ‘pollution budget’ or ‘pollution diet.’” Id. (citing Norfolk S. Ry. Co. v. City of

Roanoke, 916 F.3d 315, 324 (4th Cir. 2019); Conservation Law Found. v. EPA, 964 F.

Supp. 2d 175, 179 (D. Mass. 2013)). “The EPA’s regulations recognize that, in order for

a state to calculate the maximum level of a pollutant that a waterway can tolerate without

violating the water quality standards, a state agency must conduct a complex scientific

analysis.” Id. As part of this analysis, the state agency is required to consider, among other

things, “the relationship between the water quality standards and the level of the pollutant

in the waterway, the various sources of the pollutant, and the extent to which each source

contributes to the violation of water quality standards.” Id. at 191–92 (citing 40 C.F.R.

§ 130.7(c)).

As we explained in Carroll County,

Once the agency produces its best estimate of the maximum pollutant level consistent with water quality standards—i.e., the TMDL in the sense of a numeric measure of pollution—it must then apportion that amount to the relevant sources of that pollution while allowing for the margin of safety required by the Act. See 40 C.F.R. §§ 130.2(i), 130.7(c). The portion

10 assigned to each relevant point source is called a “wasteload allocation.” 40 C.F.R. § 130.2(h). The portion assigned to each nonpoint source is called a “load allocation.” 40 C.F.R. § 130.2(g). In all, therefore, the TMDL—in the sense of the numeric amount—for a given pollutant for a particular waterway is the sum of the wasteload allocations, the load allocations, the natural background, and the margin of safety. 40 C.F.R. §§ 130.2(i), 130.7(c)(1). After a state has determined a TMDL for a particular pollutant with respect to a particular waterway, it is to be submitted to the EPA for approval. 33 U.S.C § 1313(d)(2).

465 Md. at 192.

“When a state submits a TMDL to the EPA, the state provides not only the

maximum pollutant amount, but also the various wasteload allocations and load

allocations, together with an explanation of the calculations that resulted in that maximum

amount and the allocations.” Id. (citing EPA, Water Quality Planning and Management,

50 Fed. Reg. 1774, 1775 (January 11, 1985)).

“To enforce the TMDL limits and corresponding water quality standards, [the]

agenc[y] [] issu[ing] [a] discharge permit[] seek[s] to ensure that the total pollution

discharged by point sources does not exceed the wasteload allocations in the relevant

TMDLs. The combined pollution allocated to all of the point sources should equal the sum

of the wasteload allocations in a TMDL.” Id. at 193.

The Department has developed TMDLs for impaired waterways within Maryland,

which have been approved by the EPA. At the time of the State’s most recent submission

pursuant to the requirements of the Clean Water Act, Maryland has established 568

11 TMDLs.10 The establishment of TMDLs and specific water quality standards tied to

particular impaired waterways will factor into our discussion of the Department’s chosen

permit scheme for AFOs. In addition to describing the approval process associated with

the individual TMDLs, it is also useful to discuss the Chesapeake Bay TMDL, which looms

in the regulatory background of the State’s water quality standards.

c. The Chesapeake Bay TMDL and Maryland’s Watershed Implementation Plan (“WIP”)

In Anacostia Riverkeeper, we described in some detail the creation of the

Chesapeake Bay TMDL. 447 Md. at 104–07. After decades of multilateral efforts to

restore the Chesapeake Bay,11 in 2009, the EPA began the development of a Chesapeake

10 See Maryland Department of the Environment, Approved TMDLs, available at https://perma.cc/MG9E-S6QB. Under the Clean Water Act, every two years, states are required to submit their list of impaired and threatened waters to the EPA for approval. See 33 U.S.C. §§ 1313(d), 1315(b), 1324(a)(1)(E). The Department submitted its most recent Integrated Report of Surface Water Quality (“Integrated Report”) to EPA on January 27, 2022 available at https://perma.cc/22ZL-KJKM. The EPA approved the submission on February 25, 2022. Letter from Catherine Libertz, Director, Water Division, EPA to D. Lee Currey, Director, Water and Science Administration, MDE dated February 25, 2022. available at https://perma.cc/63Z4-2BD4. According to the Integrated Report, “Maryland has established 568 TMDLs out of a total of 972 water body-pollutant impairments.” Integrated Report at 12. These numbers can go up or down each time a list is submitted as impairments are added or deleted based on updated information and data. 11 Maryland native and United States Senator Charles Mathias was instrumental in the early efforts to address the declining health of the Chesapeake Bay. In the 1970s, Senator Mathias sponsored a congressionally funded, 5-year study to analyze the rapid loss of aquatic life that was affecting the Bay. EPA, Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment, 1-3 (December 29, 2010) (“Bay TMDL”), available at https://perma.cc/WM8V-PLV7. That study was the first basin- wide assessment of the Chesapeake Bay, its tributaries, and surrounding land. It

12 Bay-wide TMDL (“Bay TMDL”). EPA, Chesapeake Bay Total Maximum Daily Load for

Nitrogen, Phosphorus and Sediment (December 29, 2010) (“Bay TMDL”), available at

https://perma.cc/WM8V-PLV7, ES-4. The Bay TMDL was designed to ensure that all

pollution control measures needed to fully restore the Bay and its tidal rivers are in place

by 2025. Bay TMDL, at ES-1. After publishing a draft for a period of public review, the

EPA adopted the Bay TMDL in late 2010.12 Although it was developed in 2009 and

approved in 2010, the development of the Bay TMDL was a decades-long process.

Anacostia Riverkeeper, 447 Md. at 106 (citing American Farm Bureau v. EPA, 984 F.

Supp. 2d 289, 299 (M.D. Pa. 2013); American Farm Bureau, 792 F.3d at 291).13

identified excess nitrogen and phosphorus pollution as the main source of the Bay’s degradation. Id. 12 The EPA established the Bay TMDL pursuant to a number of existing authorities, including the Clean Water Act and its implementing regulations, judicial consent decrees requiring the EPA to restore clean water in the Chesapeake Bay and the region’s steams, creeks, and rivers that were failing to meet water quality standards, a settlement agreement resolving litigation brought by the Chesapeake Bay Foundation, the 2000 Agreement between certain Bay States, and Executive Order 13508. See Bay TMDL at 1-16. The Executive Order directed the EPA to “mak[e] full use of its [Clean Water Act] authorities to lead a collaborative and effective federal and state effort to meet the Bay’s nutrient and sediment goals.” Id. at 1-17. After it was established, the Bay TMDL survived legal challenges before the U.S. District Court for the Middle District of Pennsylvania, as well as the Third Circuit. American Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289 (M.D. Pa. 2013) aff’d, 792 F.3d 281 (3d Cir. 2015), cert denied, 577 U.S. 1138 (2016). 13 Some of these restoration efforts include the Chesapeake Bay Agreement in 1980, another agreement in 1987, amendments to the 1987 agreement in 1992, and the Chesapeake Bay 2000 Agreement. Department of Legislative Services, Office of Policy Analysis, Chesapeake Bay Restoration and the Tributary Strategy: An Analysis of Maryland’s Efforts to Meet the Nutrient and Sediment Reduction Goals of the Chesapeake 2000 Agreement 3-4 (2007).

13 The Bay TMDL—the largest ever developed by the EPA—identifies necessary

pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland,

New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia (the “Bay

States”) and sets pollution limits necessary to meet applicable water quality standards in

the Bay and its tidal tributaries. Bay TMDL at ES-3, 2-6–2-7.14 These pollution limits are

divided by jurisdiction and major river basins based upon state-of-the-art modeling tools,

extensive monitoring data, peer-reviewed science, and close interaction with jurisdiction

partners. Bay TMDL, ES-1.15

14 The Bay TMDL set Bay watershed limits of 185.9 million pounds of nitrogen per year, 12.5 million pounds of phosphorus per year, and 6.45 billion pounds of sediment per year—representing a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus, and 20 percent reduction in sediment. Bay TMDL, ES-1. The pollutant reductions were allocated among the Bay States by major river basin. Bay TMDL, ES- 5, ES-7. Maryland’s target loads are scaled to the five major basins in the State, which are the Potomac River basin, the Eastern Shore, the Western Shore, the Patuxent River basin, and Maryland’s portion of the Susquehanna River basin. Id.

In 2011, the EPA adjusted these figures based upon an updated Chesapeake Bay Program Watershed Model. See Letter from Shawn M. Garvin, Regional Administrator, EPA to Robert M. Summers, Secretary, MDE, dated August 1, 2011, available at https://perma.cc/2L7Z-2BTE. The new watershed model increased these figures to a total basin/jurisdiction allocation of 191.57 million pounds of nitrogen per year, 14.55 million pounds of phosphorus per year, and 7.34 billion pounds of sediment per year. Id. Under the 2011 watershed model, Maryland’s allocations were 41.17 million pounds of nitrogen/year, 2.81 million pounds of phosphorus/year, and 1,350 million pounds of sediment/year. Id. Maryland incorporated these revised target loads into its Phase II Watershed Implementation Plan (“Phase II WIP”), which we discuss in more detail herein. 15 The Bay TMDL divides the waterways within the Chesapeake Bay watershed into 92 impaired segments. Bay TMDL, at xiii. Thus, the Bay TMDL “is actually an assemblage of 276 TMDLs: individual TMDLs for each of the 3 pollutants—nitrogen, phosphorus, and sediment—for each of the 92 segments (3 x 92 = 276).” Bay TMDL, at xiii, 2-7. 14 While the Bay TMDL establishes the pollutant loadings for nitrogen, phosphorus,

and sediment needed to restore and maintain the health of the Bay, it does not, by itself,

implement the needed pollution controls. Rather, it is an “information and planning tool”

designed to make certain that by 2025, all practices necessary to restore the Bay and its

tidal waters are in place. Bay TMDL, ES-6. To ensure that the Bay States meet the targets

established by the Bay TMDL, the EPA established a unique “accountability framework,”

the cornerstone of which is the requirement that each of the Bay States develop a

“Watershed Implementation Plan” (“WIP”) to serve as a roadmap for how and when a

jurisdiction plans to meet its pollutant allocations under the Bay TMDL. Id. at ES-1. “Each

Bay State’s WIP serves two basic purposes—to break down the EPA’s total Bay TMDL

pollutant allocations among geographic areas and among point and nonpoint sources within

the state, and to identify the programs and policies that the state will use to achieve those

pollutant reductions.” Carroll County, 465 Md. at 194–95; see also American Farm

Bureau, 984 F. Supp. 2d at 298, 323.

The EPA directed that the Bay States’ WIPs be prepared in a three-phased

planning process designed to ensure the involvement of interested parties and offer

multiple opportunities to refine the plans over time. Bay TMDL, ES-14. Maryland’s

WIPs have been developed by the Department together with the Departments of Planning,

Agriculture and Natural Resources. See Maryland’s Phase I Watershed Implementation

Plan for the Chesapeake Bay Total Maximum Daily Load, December 3, 2010 (“Phase I

WIP”), available at https://perma.cc/8SCP-R76E. Maryland’s Phase I WIP was

15 submitted and accepted by the EPA on December 29, 2010.16 The second phase (“Phase

II WIP”)17 and third (“Phase III WIP”) 18 were submitted and accepted by the EPA in

16 Maryland’s Phase I Watershed Implementation Plan for the Chesapeake Bay Total Maximum Daily Load, December 3, 2010 (“Phase I WIP”), available at https://perma.cc/82FT-JE5Q. Maryland has been a leader in the Bay’s Restoration. Maryland’s initial efforts predate the establishment of the Bay TMDL. As noted in the Phase I WIP, between 1985 and 2009, Maryland reduced nitrogen pollution by 33% and phosphorus pollution by 38%. Id. at ES-3. These reductions were realized notwithstanding a 29% population increase that occurred in the State between 1985 and 2009. Id.

Maryland’s Phase I WIP highlights the State’s efforts to restore the health of the Bay, including being the first State to:

 require nutrient management plans on all farms;  commit to implementing state-of-the-art technology on all of the State’s 69 largest wastewater treatment plants—accounting for 95% of the State’s wastewater flows;  require nutrient removal technology for new and failing septic systems in its Critical Area—land within 1,000 feet of the Bay;  require environmental site design to reduce stormwater runoff on all new development approved after May 2010 and implement one of the most progressive sets of stormwater requirements for a stormwater (MS4) permit in the Bay Watershed;  place stringent air pollution controls on power plants reducing air emissions by over 75% from coal fired power plants by 2013[.]

Phase I WIP, ES-3–ES-4. And most notably for purposes of this case, Maryland “was the first state in the watershed to receive federal approval for [its] Concentrated Animal Feeding Operation program that [met] all of the new EPA regulations and require[d] comprehensive nutrient management on poultry operations for the first time.” Phase I WIP, ES-3. 17 The Department and other state agencies charged with the preparation of the State’s WIP submitted the Phase II WIP on March 30, 2012. See Letter from Robert M. Summers, Secretary, MDE to Shawn M. Garvin, Regional Administrator, EPA dated March, 30, 2012, available at https://perma.cc/8C3Y-V278. Thereafter, the Department incorporated updates, new or refined strategies, and narrative reports in a revised Phase II WIP, which was accepted by EPA on October 26, 2012: Maryland’s Phase II Watershed Implementation Plan for the Chesapeake Bay TMDL, October 2012 (“Phase II WIP”), available at https://perma.cc/U8XG-5VTT.

16 2012 and 2019, respectively. Each phased WIP allocated allowable loads of nitrogen,

phosphorus, and sediment among various pollutant source sectors and identified

statewide strategies for reducing the levels of these pollutants that are impairing the

Chesapeake Bay. With each iterative phase, Maryland’s WIP has been refined to

implement key pollution reduction strategies among the five major pollution source

sectors—agriculture, natural lands, septic, stormwater, and wastewater—and has

“substantial[ly] increase[d]” its 2025 nutrient targets. Phase III WIP, ES-4–ES-5.19

Against the backdrop of the Clean Water Act and the EPA regulations, we turn next

to Maryland’s water pollution control law.

B. Maryland’s Water Pollution Control Law The State’s water pollution control law is set forth in Subtitle 3 of Title 9 of the

Environment Article of the Maryland Code. The legislative purpose of the subtitle “is to

establish effective programs and to provide additional and cumulative remedies to prevent,

abate, and control pollution of the waters of the State.” EN § 9-302(a). The General

Assembly has directed the Department to “cooperate with local governments, agencies of

other states, and the federal government in carrying out” the legislative policy of the State’s

18 Maryland’s Phase III Watershed Implementation Plan to Restore Chesapeake Bay by 2025, August 23, 2019 (“Phase III WIP”), available at https://perma.cc/NY6Y-9ZW5. 19 Maryland’s Phase III WIP states that its “2025 nutrient targets for Bay Restoration are 45.8 million pounds of total nitrogen (TN) and 3.68 pounds of total phosphorus (TP) per year,” which “represents a substantial increase in effort over the Phase II WIP, with an additional million pounds of nitrogen reduction required by 2025.” Phase III WIP, ES-4.

17 water pollution control law. EN § 9-302(c).20 As discussed below, the Legislature has

codified some of the specific requirements for discharge permits, while also leaving

considerable discretion in the Department to structure permits and determine whether they

comply with federal and state law, as well as considerable discretion to promulgate rules

and regulations to address other aspects of water pollution.21 See EN §§ 9-313, 9-324,

9-326.

20 The legislative policy of the Maryland water pollution control law, EN § 9-302(b), states:

Because the quality of the waters of this State is vital to the interests of the citizens of this State, because pollution is a menace to public health and welfare, creates public nuisances, harms wildlife, fish and aquatic life, and impairs domestic, agricultural, industrial, recreational, and other legitimate beneficial uses of water, and because the problem of water pollution in this State is closely related to the problem of water pollution in adjoining states, it is the policy of this State:

(1) To improve, conserve, and manage the quality of the waters of this State; (2) To protect, maintain, and improve the quality of the water for public supplies, propagation of wildlife, fish, and aquatic life, and domestic, agricultural, industrial, recreational, and other legitimate beneficial uses; (3) To provide that no waste is discharged into any waters of this State without first receiving necessary treatment or other corrective action to protect the legitimate beneficial uses of the waters of this State; (4) Through innovative and alternative methods of waste and wastewater treatment, to provide and promote prevention, abatement, and control of new or existing water pollution; and (5) To promote and encourage the use of reclaimed water in order to conserve water supplies, facilitate the indirect recharge of groundwater, and develop an alternative to discharging wastewater effluent to surface waters, thus pursuing the goal of the Clean Water Act to end the discharge of pollutants and meet the nutrient reduction goals of the Chesapeake Bay Agreement. 21 Maryland’s water pollution control law defines “pollution” as:

18 1. General Discharge Permit Overview Maryland law prohibits the “discharge [of] any pollutant into the waters of this

State” unless authorized through a discharge permit issued by the Department. EN

§§ 9-322; 9-323.22 Maryland law is more stringent than federal law because it regulates

“nonpoint discharges,” i.e., discharges to groundwater and surface water, whereas federal

law regulates only “point source” discharges to surface water. Compare 33 U.S.C.

any contamination or other alteration of the physical, chemical, or biological properties of any waters of this State, including a change in temperature, taste, color, turbidity, or odor of the waters or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance into any waters of this State, that will render the waters harmful or detrimental to: (1) Public health, safety, or welfare; (2) Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses; (3) Livestock, wild animals, or birds; or (4) Fish or other aquatic life.

EN § 9-101(h). 22 EN § 9-323(a)(1) states:

A person shall hold a discharge permit issued by the Department before the person may construct, install, modify, extend, alter, or operate any of the following if its operations could cause or increase the discharge of pollutants into the waters of this State:

(i) An industrial, commercial, or recreational facility or disposal system; (ii) A State-owned treatment facility; or (iii) Any other outlet or establishment.

19 §§ 1311, 1342, 1362(12), 1362(14), with EN §§ 9-101(b),23 (l)(1),24 9-322. The

Department is authorized to issue a discharge permit upon its determination that the

discharge meets all state and federal water quality standards and appropriate effluent limits.

See EN § 9-324 (“Subject to the provisions of this section, the Department may issue a

discharge permit if the Department finds that the discharge meets: (1) All applicable State

and federal water quality standards and effluent limitations; and (2) All other requirements

of this subtitle.”). The Department is authorized to issue state discharge permits “on any

conditions the Department considers necessary to prevent a violation” of the State’s water

pollution control law. EN § 9-326(a).

The Legislature has established certain statutory requirements for state discharge

permits that are consistent with the federal counterpart established by the NPDES

permitting program. For example, discharge permits must be fixed for a term not

23 EN § 9-101(b) defines “Discharge” as:

(1) The addition, introduction, leaking, spilling, or emitting of a pollutant into the waters of this State; or (2) The placing of a pollutant in a location where the pollutant is likely to pollute. 24 EN § 9-101(l) states, in pertinent part:

“Waters of this State” includes:

(1) Both surface and underground waters within the boundaries of this State subject to its jurisdiction, including that part of the Atlantic Ocean within the boundaries of this State, the Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, public ditches, tax ditches, and public drainage systems within this State, other than those designed and used to collect, convey, or dispose of sanitary sewage[.]

20 exceeding five years. EN § 9-328; 33 U.S.C. § 1342(b)(1). Each time a general discharge

permit is renewed or reissued, it is subject to review by the EPA and subject to the public

participation process outlined in Title 1, Subtitle 6 of the Environment Article.

EN § 9-324(b). We discuss this process below.

Prior to issuing or reissuing a general discharge permit, the Department is required

to prepare a draft permit and a tentative determination that includes, among other things, a

statement that the Department intends to issue a general permit for a certain class of

discharges. EN §§ 1-603, 1-604; COMAR 26.08.04.08G(1)–(3). The Department must

make the draft permit available for inspection and copying, publish notice of the tentative

determination, and allow 30 calendar days for public comment prior to the issuance of the

final determination. EN § 1-604(a)(2), (3); COMAR 26.08.04.08G(4)(b). The Department

also prepares a “fact sheet,” which describes the class of dischargers to be regulated,

outlines the proposed permit conditions and limitations, and specifies the procedures for a

person to review and copy the tentative determination, draft permit, and related materials.

COMAR 26.08.04.08G(2).

The Department must hold a public hearing if a written request is made for a public

hearing within 20 calendar days of publication of the notice of tentative determination.

EN §1-604(a)(4)(i); COMAR 26.08.04.01–.02. The Department must give a person who

attends a public hearing an opportunity to make comments concerning the issuance of a

general permit and accept written comments on the proposal to issue a general permit for

at least five days after the public hearing. COMAR 26.08.04.08H(5). With respect to

public comments, the Department’s regulations state that any person who believes that any

21 condition of a draft permit is inappropriate “shall raise all reasonably ascertainable issues

and submit all reasonably available arguments and documents supporting their position by

the close of the public comment period, including any public hearing[.]” COMAR

26.08.04.08I(3).25

The Department must prepare a final determination if it receives comments adverse

to the tentative determination or if the final determination is substantially different from

the tentative determination. EN § 1-604; COMAR 26.08.04.08I. A notice of final

determination is required to be published, and a party seeking judicial review must file a

petition within 30 days of the publication of a notice of final determination.

EN §§ 1-604(b)(2), 1-605(b).

Notably, permits issued to discharge pollutants into the waters of the State are not

subject to a contested case hearing. EN § 1-601(a)(3), (b). In other words, a person seeking

to challenge a final determination of a general discharge permit is not entitled to an

evidentiary hearing. Instead, the General Assembly has provided for a right of judicial

review for any person who meets the threshold standing requirements and who participated

in the public comment process. EN § 1-601(c). Judicial review is limited to the

administrative record before the Department. EN §§ 1-601(d), 1-606(c). That record

consists of, among other things, the draft permit, the Department’s written basis for its final

25 Any supporting materials which are submitted are required to be “included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials.” COMAR 26.08.04.08I(4).

22 determination, documents supporting the stated basis, comments on the draft permit,

responses to any comments, and tapes and transcripts of the public hearings. EN § 1-

606(c). Judicial review is limited to issues raised during the public comment process unless

objections were not reasonably ascertainable during that process or arose afterward. EN

§ 1-601(c).

Judicial review begins in the relevant circuit court26 pursuant to the procedures set

forth in EN § 1-601 et seq. and Maryland Rule 7-201 et seq. (rules governing actions for

judicial review when a statute authorizes such judicial review). There is a right to appeal

the decision of the circuit court to the Appellate Court of Maryland. EN § 1-601(e)(2).

2. The Department’s Regulatory and Rulemaking Authority under Maryland’s Water Pollution Control Laws

The Legislature has given the Department extensive regulatory authority in

connection with its duties and obligations under the State’s water pollution control laws.

EN §§ 9-313, 9-314. When promulgating rules and regulations under Subtitle 3 of Title 9

of the Environment Article, the Department is required to consider, among other things:

existing physical conditions; the character of the area involved, including surrounding land

uses; priority ranking of waters as to effluent limits; the nature of the existing receiving

water body; the technical feasibility of measuring or reducing a particular type of water

pollution; and the economic reasonableness of measuring or reducing the particular type of

water pollution. EN § 9-313(b). The General Assembly has also provided the Department

26 Venue is appropriate in a circuit court for a county in which the activity governed by the permit will occur. EN § 1-601(e)(1). We discuss this requirement in more detail in note 37 infra. 23 with discretion to “[i]mpose, as circumstances require, different requirements for different

pollutant sources and for different geographic areas” unless a provision of Subtitle 3

“provides for a particular type of rule or regulation.” EN § 9-313(c).

The statute also gives specific directives related to the Department’s rules and

regulations that set water quality standards and effluent standards. EN § 9-314.

Specifically, EN § 9-314(b) states, in pertinent part, that the Department’s rules and

regulations that set water quality standards and effluent limitations “shall include at least

the following:”

(1) Water quality standards that specify the maximum permissible short term and long term concentrations of pollutants in the water, the minimum permissible concentrations of dissolved oxygen and other desirable matter in the water, and the temperature range for the water.

(2) Effluent standards that specify the maximum loading or concentrations and the physical, thermal, chemical, biological and radioactive properties of wastes that may be discharged into the waters of this State. The statute further directs that the “[e]ffluent standards set under this section shall

be at least as stringent as those specified by the National Pollutant Discharge Elimination

System.” EN § 9-314(c). Pursuant to its authority, the Department has promulgated water

pollution regulations, which are set forth in Subtitle 8 of Title 26 of the Code of Maryland

Regulations.

In addition to its rulemaking and regulatory authority, the Legislature has given the

Department additional powers and duties, including the authority to:

 administer and enforce the State’s water pollution control law and the rules and regulations promulgated pursuant to the law;

24  develop comprehensive programs and plans for the prevention, control, and abatement of pollution of the waters of the State;

 advise, consult, and cooperate with the federal government and other state agencies, and industries to carry out the provisions of the law;

 accept and administer grants and loans to carry out the Department’s functions;

 encourage, participate in, finance, or conduct studies, investigations and research related to water pollution or its causes, control, or abatement;

 issue, modify, or revoke orders and permits that prohibit discharges of pollutants into the waters of this State or to adopt any other reasonable remedial measures to prevent, control, or abate pollution or undesirable changes in the quality of the waters of this State; and

 exercise every incidental power necessary to carry out of the provisions of Subtitle 9. EN § 9-319(a).

In connection with the Legislature’s directives, the Department has adopted

regulations and permitting schemes to address the five major pollution source sectors

associated with water pollution—agriculture,27 natural lands, septic, stormwater, and

wastewater. Phase III WIP, ES-4–ES-5. One category of the agriculture pollutant source

27 It is undisputed that agricultural activities generate water pollution, which can arise from multiple sources. See EPA Development Document for the Final Revisions to the National Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding Operations, December 2002 (“EPA Development Document”), 7-1. One particular pollutant source is animal manure, which contains nitrogen and phosphorus. Id. at 7-3. Given its high nutrient content, “animal manure can serve as a valuable agricultural resource[]” when growing crops or plants. Id. at 7-3. But in an area “where the amount of nutrients in manure generated from AFOs is greater than the nutrient requirements of the crops grown in the area, excess land application has occurred, which can lead to increased nutrient runoff and seepage and subsequent degradation of water resources.” Id.

25 is animal feeding operations or “AFOs.” The Department has adopted regulations and a

permitting process for AFOs that mirrors the EPA’s federal regulatory and permitting

process for CAFOs. We discuss below these dual permitting processes that the Department

administers under both federal and state law.

C. Permitting Process for Animal Feeding Operations (“AFOs”) Both the EPA and MDE have elected to regulate types of animal feeding operations

through the issuance of general discharge permits that include technology based effluent

limitations in the form of “best management practices” or “BMPs” that are site-specific to

each covered operation. 40 C.F.R. § 412.4(c); EN § 9-326. BMPs are defined as

“schedules of activities, prohibitions of practices, maintenance procedures, and other

management practices to prevent or reduce the pollution of ‘waters of the United States.’”

40 C.F.R. § 122.2. “BMPs also include treatment requirements, operating procedures, and

practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage

from raw material storage.” 40 C.F.R. § 122.2.

As we discuss in more detail below, once the AFO general discharge permit has

been issued by the Department, each AFO owner or operator seeking to obtain permit

coverage must undergo a site-specific approval process. That process includes the

submission of a nutrient management plan that incorporates technology based effluent

limitations in the form of best management practices, which are prepared by licensed and

certified nutrient planners based upon the specific site conditions of the particular operation

and the surrounding features. Each nutrient management plan is subject to public review

and comment. If the Department approves the nutrient management plan, its terms are

26 incorporated as terms and conditions of the permit coverage. Any person aggrieved by the

approval of an individual plan and corresponding permit coverage has a right to file for a

contested case hearing.

1. Federal Regulations The EPA regulates point source discharges by a concentrated animal feeding

operation (“CAFO”), which is an animal feeding operation that exceeds certain size

thresholds and discharges pollutants into navigable waters. Under federal regulations, an

AFO becomes a CAFO in two ways: (1) automatically, if it confines a certain number of

animals; and (2) if it is specifically designated as a CAFO based on a determination that it

is a significant contributor of pollutants to the waters of the United States. 40 C.F.R.

122.23(b)-(c).

The federal regulations establish a “zero discharge” general permit for CAFOs,

which prohibits all discharges of pollutants to surface and ground waters from CAFO

production areas.28 See 40 C.F.R. § 412.46. The premise of a zero discharge permit is that

the property design and implementation of onsite best management practices (or “BMPs”)

will either prevent nutrient loss or allow for nutrient-uptake by vegetation, thereby

eliminating actual discharges to surface and ground waters. See 68 Fed. Reg. 7176, 7179

(February 12, 2003). Under the zero discharge permit framework, the EPA regulations

establish best management practices for CAFOs, which are non-numerical effluent

limitations, but “are still technology-based because they are based on the technology

28 “Production area” is defined to mean, among other things, the animal confinement area of an AFO, including all housed lots and confinement houses. See 40 C.F.R. § 412.2(h). 27 standards prescribed by the [Clean Water] Act.” Waterkeeper Alliance Inc. v. E.P.A., 399

F.3d 486, 496 (2d Cir. 2005); see also 40 C.F.R. § 122.44(k) (describing circumstances in

which the EPA may promulgate BMPs in place of numeric effluent limitations).

When issuing a permit, the Department is directed to use the best practicable control

technology currently available—as established by any effluent limitation that is applicable

to the facility—to achieve a level of water pollution control that produces the least impact

on water quality. See 40 C.F.R. § 125.3(a)(2)(i). With respect to CAFOs, the regulations

require the implementation of best management practices to address three particular

sources of pollution that are commonly generated by CAFOs: manure, litter, and process

wastewater. See, e.g., 40 C.F.R. § 412.31. Notably, the federal CAFO regulations do not

require the implementation of BMPs to address air emissions. See generally 40 C.F.R.

§§ 412.31(a).29

2. Maryland’s AFO General Discharge Permit Process

Maryland began regulating CAFOs through regulations and a general permit

originally adopted in 1996. The 1996 general permit only regulated CAFOs as defined by

federal regulations. Assateague Coastkeeper v. Maryland Dep’t of the Env’t, 200 Md. App.

665, 678 (2011), cert. denied 424 Md. 291 (2012). To be covered under the permit, an

29 Although the EPA does not regulate air emissions through its water pollution point source permits, the Bay TMDL reflects the EPA’s “commit[ment] to reducing air deposition of nitrogen to the tidal waters of the Chesapeake Bay from 17.9 to 15.7 million pounds per year[,]” noting that “[t]he reductions will be achieved through implementation of federal air regulations during the coming years.” Bay TMDL ES-6.

28 applicant needed only to submit an application, a notice of intent, and pay the required fees.

Id.

In January 2009, MDE established new AFO general discharge permit regulations.

36:1 Md. Reg. 24. The regulations governing AFOs are contained in COMAR under

Subtitle 8 “Water Pollution” in sections 26.08.01 General, 26.08.03 Discharge Limitations,

and 26.08.04 Permits. Maryland’s AFO regulations were approved by the EPA on January

29, 2010. EPA, NPDES CAFO Rule Implementation Status—National Summary End

Year 2011 (Dec. 31, 2011), available at https://perma.cc/AQE6-QTJH. The Maryland

AFO discharge permit scheme recognizes that CAFOs are regulated under the Clean Water

Act and CAFO owners or operators must obtain an NPDES permit issued by the

Department. COMAR 26.08.03.09B(3).

In addition to regulating CAFOs, Maryland also regulates AFOs and Maryland

Animal Feeding Operations (“MAFOs”). AFOs are operations that do not meet the CAFO

size threshold and are only regulated by the State. See generally COMAR

26.08.01.01B(13-2); 40 C.F.R. § 122.23(b)(2); 40 C.F.R. Part 412. MAFOs meet the

CAFO size criteria, but discharge pollutants only into groundwater, not surface water.

COMAR 26.08.03.09.B(1)(d). MAFOs are not required to obtain an NPDES permit

because they do not discharge to surface water, but they are regulated by the Maryland

general discharge permit issued for AFOs. COMAR 26.08.03.09C(5)–(6).

The CAFO performance standards established by federal regulation have been

incorporated by reference into Maryland’s AFO regulations. See 40 C.F.R. §§ 122.23,

412.46; COMAR 26.08.03.09B. Specifically, the general discharge permit scheme

29 imposes a “zero discharge” limitation for AFOs, which prohibits all discharges of

pollutants to surface and ground waters from AFO production areas. See 40 C.F.R.

§ 412.46 (related to CAFOs); see also COMAR 26.08.03.09B.

Since the 2009 the adoption of the permit scheme set forth in the AFO regulations,

the Department has issued two successive AFO general discharge permits—the first in

2009 and the second in 2014 upon the expiration of the first permit. With each issuance of

the general permit, the permit conditions have been strengthened.30 Assateague challenged

the Department’s issuance of the 2009 General Permit and the 2014 General Permit in two

separate cases, and the Appellate Court of Maryland upheld the Department’s final

determination with respect to both permits. See Assateague Coastkeeper, 200 Md. App. at

678–79; Food and Water Watch & Assateague Coastal Trust v. Maryland Dep’t of the

Env’t, 2018 WL 2203175 (Md. Ct. Spec. App.), cert. denied, 460 Md. 502 (2018). We will

discuss these challenges in more detail when we address Assateague’s arguments related

to the 2019 General Permit.

In order to obtain permit coverage under the general permit, all AFOs are required

to submit a notice of intent and an individual nutrient management plan that addresses site-

specific conditions, which is subject to the public participation process. COMAR

28.08.04.09N(3). In addition to submitting a notice of intent, each AFO is required to

30 As a general rule, the Clean Water Act prohibits subsequent iterations of NPDES permits from containing “less stringent” conditions than the provisions in the previous permit—sometimes referred to as the “anti-backsliding prohibition” in the Act. 33 U.S.C. § 1342(o).

30 develop and implement for their production areas a nutrient management plan—often

referred to as a “Required Plan”—that meets the requirements of 40 C.F.R. § 122.42(e)

and applicable effluent limitations and standards, including CAFO-specific effluent

limitation guidelines set forth in 40 C.F.R. Part 412.

The General Assembly has delegated authority to the Maryland Department of

Agriculture (“MDA”) to oversee the creation of nutrient management plans, the licensing

and certification requirements for the professionals who prepare the plans, as well as rule

making and regulatory authority in connection with the preparation and oversight of the

plans. Maryland Code, Agriculture Article (2011 Repl. Vol., 2022 Supp.) (“AG”)

§ 8-801.1. The MDA has promulgated regulations that set forth the contents of a Required

Plan in COMAR 15.20.08.04. A Required Plan establishes operational and management

practices regarding, among other things, waste storage, animal confinement, and land

application areas to prevent the discharge of pollutants to waters of the State. The plans

are site-specific and prepared by nutrient management planners who are licensed and

certified by the MDA. COMAR 26.08.01.01B(53-1), 15.20.04; 40 C.F.R. § 122.42(e)(1)-

(6).31 Plan writers are trained to evaluate an operation’s site-specific environmental effects

31 The development of Required Plans is yet another area which involves oversight by multiple federal and state agencies—the EPA, the U.S. Department of Agriculture, the MDE, and the MDA—and in which the federal and state regulations overlap. The nutrient management plans must meet federal and state requirements. See 40 C.F.R. § 122.42(e)(1)–(6); COMAR 26.08.01.01B(53-1). The MDA has promulgated regulations specifying the contents of a nutrient management plan in COMAR 15.20.08.04, and regulations for the recommendations of nutrient management plans in COMAR 15.20.08.05.

31 and are tasked with developing site-specific practices to mitigate negative environmental

impacts. COMAR 15.20.07–.08. After plan writers identify environmental hazards such

as waste storage, animal confinement, proximity to waterbodies, and water quality, the plan

writers develop mitigation measures in accordance with the standards and specifications

developed by the U.S. Department of Agriculture’s Natural Resources Conservation

Service (“NRCS”). See 40 C.F.R. § 122.42(e)(1)–(6); COMAR 26.08.01.01B(53-1).

Required Plans must ensure that appropriate measures are employed to store,

stockpile, and manage manure and waste nutrients associated with animal production in

accordance with federal and state requirements, including standards and specifications

developed by the NRCS. See 40 C.F.R. § 122.42(e)(1)-(6); COMAR 26.08.01.01B(53-1).

The plans must be based upon an assessment of “possible resource concerns,” and they

must implement applicable NRCS conservation standards where resource concerns exist.

40 C.F.R. § 122.42(e)(1)-(6); COMAR 26.08.01.01B(53-1).

A “resource concern” is a term of art, defined in the NRCS Planning Procedures

Handbook, Title 180, § 600.2(120), as “[a]n expected degradation of the soil, water, air,

plant, or animal resource base to the extent that the sustainability or intended use of the

resource is impaired.” (Nov. 2014). As it pertains to Assateague’s challenge to ammonia

emissions—which we discuss below—air quality-based resource concerns include

“airborne soil and smoke particulates that can cause safety-related problems, machinery

and structure damage, health problems, deposition of airborne sediment in water

conveyances, airborne chemical drift, odors, and fungi, molds, and pollen.” NRCS

National Planning Procedures Handbook, Title 180, § 600.2(3).

32 The Department reviews each Required Plan to ensure that its management practices

are sufficiently protective given the specific circumstances of the farm, the surrounding

topography, and the proximity of any waterways that may be affected by the farm’s

operations. The issuance of coverage under the general discharge permit is contingent

upon approval of the Required Plan for the particular operation. COMAR 26.08.04.09.

After the plan writer prepares the Required Plan and submits it to the Department,

the plan is subject to public review, comment, and a public hearing in accordance with

COMAR 28.08.04.09N(3). Any person aggrieved by the Department’s final approval of a

Required Plan may request a contested case hearing. COMAR 26.08.04.09N(3)(1)(ii).

When the Department approves an AFO’s Required Plan, the terms are incorporated into

the general permit as conditions that are enforceable by the Department. COMAR

26.08.04.09N(3)(l)(iv). In locations or circumstances in which the Department concludes,

in its sole discretion, that the general discharge permit does not adequately protect state

waters, the Department may require the AFO owner or operator to apply for and obtain an

individual discharge permit for that particular facility. COMAR 26.08.04.09N(1)(a). Once

a permit is issued, permit holders must comply with monitoring, record keeping, and

reporting requirements for discharge permits. COMAR 26.08.04.03. The Department

conducts ongoing inspections of the permit holder’s operation to ensure compliance with

terms of the discharge permit. EN § 9-328.1.

The above-described process for an individual AFO owner or operator seeking

general permit coverage mirrors the process established by the EPA for CAFOs. See

33 40 C.F.R. § 122.23(h)(1).32 This makes sense given the Department’s responsibility for

administering both the NPDES permits required for CAFOs, and state general discharge

32 40 C.F.R. § 122.23(h)(1) establishes the following procedures for CAFOs seeking coverage under a general discharge permit:

CAFO owners or operators must submit a notice of intent when seeking authorization to discharge under a general permit in accordance with § 122.28(b). The Director must review notices of intent submitted by CAFO owners or operators to ensure that the notice of intent includes the information required by § 122.21(i)(1), including a nutrient management plan that meets the requirements of § 122.42(e) and applicable effluent limitations and standards, including those specified in 40 CFR part 412. When additional information is necessary to complete the notice of intent or clarify, modify, or supplement previously submitted material, the Director may request such information from the owner or operator. If the Director makes a preliminary determination that the notice of intent meets the requirements of §§ 122.21(i)(1) and 122.42(e), the Director must notify the public of the Director’s proposal to grant coverage under the permit to the CAFO and make available for public review and comment the notice of intent submitted by the CAFO, including the CAFO’s nutrient management plan, and the draft terms of the nutrient management plan to be incorporated into the permit. The process for submitting public comments and hearing requests, and the hearing process if a request for a hearing is granted, must follow the procedures applicable to draft permits set forth in 40 CFR 124.11 through 124.13. The Director may establish, either by regulation or in the general permit, an appropriate period of time for the public to comment and request a hearing that differs from the time period specified in 40 CFR 124.10. The Director must respond to significant comments received during the comment period, as provided in 40 CFR 124.17, and, if necessary, require the CAFO owner or operator to revise the nutrient management plan in order to be granted permit coverage. When the Director authorizes coverage for the CAFO owner or operator under the general permit, the terms of the nutrient management plan shall become incorporated as terms and conditions of the permit for the CAFO. The Director shall notify the CAFO owner or operator and inform the public that coverage has been authorized and of the terms of the nutrient management plan incorporated as terms and conditions of the permit applicable to the CAFO.

34 permits for AFOs that are not required to obtain an NPDES permit. See COMAR

26.08.04.07A.33

II.

Procedural History

A. 2019 AFO General Discharge Permit – Administrative Record The Department proposed to reissue its AFO general discharge permit in 2019, with

modifications. As it did with prior iterations, the Department submitted the permit to the

EPA for its review as required by federal regulations.34 The Department and the EPA

corresponded with one another regarding various provisions and requirements in the draft

permit. After including the EPA’s suggested modifications, the Department published a

notice of tentative determination to reissue the permit. The EPA did not exercise its

statutory authority to object to that determination.

The 2019 General Permit follows the same regulatory framework as the 2009 and

2014 General Permits. Pertinent to Assateague’s challenges raised here, the 2019 General

Permit also contained some new provisions. We first describe some of the provisions of

33 Because the general discharge permit is issued as a joint federal NPDES permit and a Maryland general discharge permit, the face of the permit includes the numeric permit number under both permit schemes—the 2019 General Permit is issued as “Maryland Permit No. 19AF” and “NPDES Permit No. MDG01.” 34 The Department must provide the EPA with the opportunity to object to state- issued general discharge permits to “ensure compliance” with the “[Clean Water Act]or any guidelines of regulations” and to ensure that the state-issued permit will “[a]chieve water quality standards.” 40 C.F.R. § 123.44(c)(1), (4), (8) (incorporating the requirements of 40 C.F.R. § 122.44(d)).

35 the 2019 General Permit that are substantially the same as previous iterations of the AFO

general discharge permit, and then describe some of the key additions.

1. Provisions of the 2019 General Permit that are Substantially the Same as in the 2014 and 2009 General Permits As in previous permit iterations, the 2019 General Permit prohibits all discharges of

pollutants to surface and ground waters from AFO production areas, unless caused by a

storm event or an upset event in certain limited instances. 2019 General Permit, Part I.B.35

To obtain coverage under the 2019 General Permit, an AFO owner or operator is required

to submit a notice of intent and develop a Required Plan, which must be submitted and

approved in order to obtain coverage under the general permit. The 2019 General Permit,

Part II, AA. defines “Required Plan(s)” as “those Plans that CAFO and MAFO applicants

are required to submit to the Department pursuant to COMAR 26.08.04.09N(3)(b) and the

35 The general discharge permit creates different prohibitions for different types of AFOs.

For “Existing CAFOs[,]” “no discharge of pollutants, including manure, litter, or process wastewater, to surface waters of the State from CAFO production areas shall be permitted unless the discharge results from a storm event greater than the 25-year, 24-hour storm,” as described elsewhere in the general discharge permit. 2019 General Permit, Part II.B.2.

For “New Source CAFOs[,]” “No discharge of pollutants, including manure, litter or process wastewater to surface waters for the State from production areas shall be permitted unless the operator demonstrates that an ‘upset’”—as described in the general discharge permit— “has occurred.” 2019 General Permit, Part II.B.3.

For “MAFOs[,]” “No discharge of pollutants, including manure, litter or process wastewater, to surface waters for the State from MAFO production areas, regardless of the intensity of the storm event, is authorized under this permit[.]” 2019 General Permit, Part II.B.4.

36 federal regulations in 40 CFR 122.42(e). These Plans include, but are not limited to,

CNMPs[36] and NMPs[37] and any other plans deemed necessary to perform a proper review

of the application by the Department.” The Required Plan must be prepared for each site

by a certified and licensed planner based upon the specific site conditions for a particular

operation, using technology based effluent limitations in the form of BMPs as set forth in

the federal and state regulatory framework. The comprehensive nutrient management plan

that is part of the Required Plan that is developed for a specific operation is required to

meet the requirements of the NRCS National Planning Procedures Handbook (NPPH), Part

600.60 A(1)–Component Planning Technical Guidance, Subpart G, Amendment 6,

November 2014. The Required Plan must include nine minimum standards to protect water

36 Under the definitions of the 2019 General Permit, Part II, E. states:

“Comprehensive Nutrient Management Plan” or “CNMP” describes and documents a conservation system that is unique to an AFO. The CNMP addresses all aspects of the AFO including animal waste handling, nutrient management, and conservation practices as described in the NRCS National Planning Procedures Handbook (NPPH), Part 600.60 A(1) – Component Planning Technical Guidance, Subpart G, Amendment 6, November 2014, which is consistent with all requirements of COMAR 15.20.07 and 15.20.08 and federal effluent guidelines at Title 40 CFR 412.31. A CNMP satisfies the requirement for a “required plan” for both CAFOs and MAFOs, as defined in Part III.B of this permit. A CNMP includes a nutrient management plan portion and a conservation plan portion, along with an implementation schedule in addition to other NRCS requirements. 37 Under the definitions of the 2019 General Permit, Part II, U. states:

“Nutrient Management Plan (NMP)” means a plan written by a nutrient management planner certified by the [Maryland Department of Agriculture] that meets all requirements of COMAR 15.20.07 and 15.20.08.

37 quality, which include: animal waste storage capacity; a setback or vegetated filter strip

between litter storage and surface waters; protocols for manure and soil testing; protocols

for land application of manure and wastewater; and monitoring and record keeping

requirements. 2019 General Permit, Part IV.B.

Some of the 2019 General Permit’s general conditions that were included in

previous iterations of the permit are:

 A requirement that the permittee comply at all times with the General Permit, the approved Required Plans, the Clean Water Act, and the Maryland water pollution control law

 A right of entry at all times by the Department, or their authorized representatives, as well as researchers authorized by the Department, the Maryland Department of Agriculture, and the EPA, to inspect and copy records, monitoring equipment and methods, sample any discharge of pollutants, take photographs

Part VII. General Conditions, A. and B. The General Conditions also address TMDLs.

2019 General Permit, Part VII.K. That general permit provision states:

K. Total Maximum Daily Loads. Permit requirements are consistent with existing Total Maximum Daily Loads (TMDLs) for impaired water bodies. Additional TMDLs and wasteload allocations (WLAs) may be determined for nutrients in tidal waters. If WLA assessment for nutrients in tidal waters or a later assessment of wastewater discharged from these operations indicates that WLAs are required, additional or alternative controls or monitoring may be required.

1. Best management practices (BMPs) for AFOs are identified in the operation’s Required Plans(s) which may include a CNMP, NMP, and a Conservation Plan. At a minimum, the permittee shall implement these BMPs as specified in the Required Plan(s).

2. In order to ensure that this permit provides effluent discharge controls consistent with the assumptions and the requirements of the Chesapeake Bay TMDL WLA, the Department may require, during the permit review process, and at any time after the issuance of the permit coverage, 38 additional BMPs and controls to protect the public health and to protect, maintain and restore water quality, and the existing and designated uses of the waters of the State. For AFOs within the Chesapeake Bay watershed, this may include additional BMPs listed in Maryland’s Watershed Implementation Plan (WIP) for Chesapeake Bay. These BMPs may include, but are not limited to, the agricultural practices set forth in the following categories contained in the WIP: Nutrient Management/Annual Practice; Other Practices; Additional BMPs, and: Pasture BMPs.

(Emphasis added). In addition, “[i]f the Department, in its sole discretion, determines that

this General Discharge Permit is not adequately protective of state waters at an operation,

the Department may require any person authorized by this permit to apply for an individual

State discharge permit.” 2019 General Permit, Part VII,M.2.

2. New Requirements Under the 2019 General Permit

In conjunction with its notice of tentative determination to reissue the AFO general

discharge permit, the Department prepared a fact sheet, which summarized changes or

modifications that were being made from the prior iteration of the AFO general discharge

permit. One of the new requirements of the 2019 General Permit identified on the fact

sheet was the addition in Part IV.D. subsection 2, which the Department described as the

addition “of a section on outdoor air quality for poultry operations . . . [r]equir[ing] the

appropriate NRCS Practice Standards if air quality is a resource concern.”

Specifically, the new requirement set forth in Part IV.D.2 of the 2019 General

Permit states that nutrient management plans prepared for a particular facility must address

any “resource concerns” about the particular AFO’s air quality: “For poultry: If outdoor

air quality is determined to be a resource concern, use appropriate NRCS Practice

Standards to address the concern.”

39 During the public comment period on the proposed permit, the Department received

numerous written comments and held two public hearings in October 2019 regarding the

tentative determination. Two specific and competing comments—one by the Delmarva

Poultry Industry, Inc. (“Poultry Industry”) and one by Assateague—related to the

Department’s new permit provision set forth in Part IV.D.2 addressing air emissions. Part

IV.D states:

1. Odors: the facility shall be operated at all times to minimize nuisance odors associated with process wastewater treatment and storage operations from escaping the facility boundaries.

2. For poultry: If outdoor air quality is determined to be a resource concern, use appropriate NRCS Practice Standards to address the concern.

The Poultry Industry took the position that the Department had no authority to

regulate odors or air quality through a water pollution discharge permit and requested that

the Department remove Part IV.D.1 and 2. On the other hand, Assateague maintained that

the new language in the draft permit was inadequate. Specifically, Assateague submitted

the following written comment concerning the newly added Part IV.D.2:

The only reference the draft permit makes to the substantial ammonia pollution caused by AFOs is new language in Part IV.D. that advises, but does not require, an operator to “use appropriate NRCS Conservation Practice Standards to address the concern” if “outdoor air quality is determined to be a resource concern.” Once again, the framework for determining whether or not something is a resource concern is left up to the owner or operator of the regulated AFO. As such, there are no pollution limits or standards in the draft permit capable of protecting waters of the State, AFO workers, or downwind communities from the massive amount of ammonia emitted by large poultry AFOs, as well as potentially hazardous amounts of particulate matter or any other pollutant.

40 After reviewing the testimony and written comments received during the public

participation process, the Department prepared a report of its findings that summarized the

comments it received, identified several revisions to the draft permit in response to those

comments, and where no changes were made, provided its explanation to support the

permit conditions. With respect to the new requirement set forth in Part IV.D.2., the

Department considered the competing comments by the Poultry Industry and Assateague

and provided a written response explaining why it was not making changes to the air quality

requirements that had been added to that permit provision. In response to the comments

received regarding the Department’s approach to regulating air pollution and ammonia

depositions from AFOs, the Department summarized the comments it had received, and its

response, in its report:

[Summary of Comments:] The Permit does not adequately address air pollution (particulate matter/ammonia depositions) from poultry house exhaust fans and manure sheds that are deposited in the air and make their way to surface waters causing health and water quality impairments. Air and water quality monitoring are essential to determine impacts to surface/ground water/air quality. The Permit must be amended to reflect air emissions and monitoring requirements based on results from studies to be conducted by December 1, 2021. The Department should require an air sampling plan with results submitted to MDE within a certain period of time. How will MDE regulate these emissions in the Permit and determine impacts to resources? What is the monitoring strategy?

[The Department’s Response:] EPA does not regulate odors or air quality through its CAFO permitting program. See generally 40 CFR 122.23. While MDE derives much of its NPDES permitting authority from EPA and the [Clean Water Act], it is authorized, as a delegated program, to impose requirements that are more stringent than what is required by the [Clean Water Act] or EPA’s regulations. Therefore, MDE included in the draft General Discharge Permit provisions that require AFO owners or operators to implement BMPs in order to reduce nuisance odors and address any air

41 quality resource concerns using appropriate NRCS Practice Standard(s). See General Discharge Permit at Part IV.D.1–2.

MDE’s Air and Radiation Administration (ARA) continues to monitor activities within the animal husbandry industry as well as EPA’s ongoing efforts to evaluate environmental impacts and possible regulatory initiatives. Ammonia emissions/ammonia deposition have been considered and addressed to the extent permissible under the Clean Water Act and the state’s water pollution control law and implementing regulations with the requirement of several NRCS practices including litter amendments and hedgerows/shelterbelts.

There are several Natural Resources Conservation Service (“NRCS”) practice standards that can be implemented by AFO operators to reduce actual or potential ammonia emissions from poultry houses. NRCS Practice Standard, Amendments for Treatment of Agricultural Waste, is used in poultry houses to reduce the potential for high ammonia emissions such as sodium bisulfate, aluminum sulfate, acidified clay, and ferric sulfate. These amendments are applied to the litter prior to bird placement to reduce potential high levels of ammonia, suppress ammonia volatilization from litter and reduce emissions from the poultry facilities. Modern poultry houses have internal ventilation and cooling systems. Though the primary goal of these systems is to provide bird comfort, an added benefit is that they reduce dust and feathers inside the houses. This results in less particulate matter to be discharged into the atmosphere. The emission of dust and feathers may be addressed through NRCS Practice Standards (Hedgerow Planting) or (Windbreak/Shelterbelt Establishment). The implementation of these BMPs can provide ammonia reduction and a means to reduce dust and feathers.

The draft General Discharge Permit contains BMPs to sufficiently minimize AFO ammonia emissions from poultry houses therefore no revisions are necessary.

Although the Department did not modify Part IV.D. in a manner suggested by either

the Poultry Industry or Assateague, it added additional provisions that are relevant to

Assateague’s challenges. Specifically, in its Notice of Final Determination, the

Department stated, in pertinent part, that it was adding the following to the 2019 General

Permit Part III.B.5:

42  Committing the Department to develop a form on which a CNMP writer must identify the resources evaluated and identify all specific resource concerns at the particular AFO, which must be provided to the Department when the AFO’s CNMP is submitted

 Requiring the Required Plan to “identify the distance to and the name of the nearest waterbody(s), the 12-digit watershed name and number, the water quality status of the watershed(s) by identifying if there are any . . . TMDL impairments for nitrogen, phosphorus, bacteria or sediment and if the facility is located in a Tier 2 watershed(s)” The Department issued its Notice of Final Determination, finalized the Permit, and issued

it effective July 8, 2020.

B. Judicial Review of the Permit On July 23, 2020, Assateague filed a petition for judicial review in the Circuit Court

for Montgomery County38 challenging the Department’s Final Determination to issue the

2019 General Permit. Assateague argued that the 2019 General Permit failed to comply

with federal and state law because it did not include water quality based effluent

38 In 2009, the Legislature added a provision to EN § 1-601(e)(1), which states that: “Unless otherwise required by statute, a petition for a judicial review . . . shall be filed in the circuit court where the application for the permit states that the proposed activity will occur.” 2009 Md. Laws, ch. 651 (emphasis added). In the Amici Brief filed by the Delmarva Chicken Association, Inc., Maryland Dairy Industry Association, Inc., Maryland Farm Bureau, Inc., Maryland Grain Producers Association, Maryland Pork Producers Association and MidAlantic Farm Credit, ACA, these Amici point out that because there are “no AFOs in Montgomery County[,]” there is “no proposed activity that will occur” in Montgomery County. These Amici assert that Assateague’s “venue of choice was deliberate forum shopping done to prevent any AFO owner/operation or other interested person from learning [that] the [p]etition had been filed in time to participate as a party in this case.” In light of the fact that: (1) the Department did not challenge Assateague’s choice of venue in this case; and (2) we are reversing the circuit court’s judgment, we will not consider in this case whether the statutory venue requirements were violated and if so, the consequences for failing to comply. In any event, we trust that future petitions for judicial review will be filed in a venue that complies with the statutory requirements. 43 limitations, and because it did not adequately address ammonia emissions. The

Department defended its decision, arguing that the general permit framework complied

with the water quality standards under both federal and state law.

On March 11, 2021, the circuit court issued a memorandum opinion and an order

reversing the Department’s Final Determination and remanding the 2019 General Permit

“to mandate effluent limitations for ammonia and other water quality based effluent limits.”

The Department filed an appeal to the Appellate Court of Maryland. This Court granted

the Department’s petition for a writ of certiorari prior to the Appellate Court’s

consideration of this matter.

III.

Discussion

A. What and How We Review

In this case, we are being asked to determine whether the Department erred in

making its Final Determination to issue the 2019 General Permit. Assateague has

challenged the Department’s Final Determination by asserting that: (1) the Department’s

failure to include water quality based effluent limitations in the general discharge permit

for AFOs violates the Clean Water Act and Maryland’s water pollution control law; and

(2) the Department either has not regulated ammonia emissions at all, or, alternatively, if

ammonia emissions are included with the permit conditions, the conditions are insufficient.

When this Court or any appellate court reviews the final decision of an

administrative agency, we look through the circuit court’s decision and evaluate the

decision of the agency. Carroll County, 465 Md. at 201. In other words, we are not

44 assessing the merits of the circuit court’s decision, but are instead directly reviewing the

permit in light of the issues raised by Assateague and the Department’s response thereto.

Prior to January 1, 2010, challenges to the issuance or denial of a discharge permit

were subject to a contested case hearing under the Administrative Procedure Act (“APA”).

See Md. Code (2004 Repl. Vol., 2009 Supp.) State Government (“SG”) § 10-201 et seq.;

EN § 1-601(b) (1993). Indeed, Assateague’s challenge to the 2009 General Permit was

brought under the provisions of the APA. See Assateague Coastkeeper, 200 Md. App. at

669. In 2009, the General Assembly amended the provisions of EN § 1-601(b) to eliminate

an aggrieved party’s right to a contested case hearing for certain types of environmental

permits, including discharge permits issued under § 9-323 of the Environment Article. See

2009 Md. Laws, ch. 651.

Under the 2009 amendments, a person challenging a general permit issued under

EN § 9-323 has a right to seek judicial review, which is limited to the administrative record

before the Department. EN § 1-601(a). “Although this statute does not set forth a standard

of review, the substantial evidence and arbitrary and capricious standards apply where an

‘organic statute’ authorizes judicial review . . . and does not set forth a standard of review.”

Anacostia Riverkeeper, 447 Md. at 118. We explain how these standards apply when

reviewing an environmental permit such as a discharge permit.

B. Standards of Review of Discharge Permits “The standards for judicial review of a discharge permit—and their corresponding

levels of deference to the agency—vary depending on whether the court is reviewing an

45 agency’s fact findings, discretionary decisions, or legal conclusions.” Carroll County, 465

Md. at 201 (citing Anacostia Riverkeeper, 447 Md. at 118–21).

1. Review of Fact Findings

“For fact findings, a reviewing court applies the ‘substantial evidence’ standard,

under which the court defers to the facts found and inferences drawn by the agency when

the record supports those findings and inferences.” Id. As we observed in Anacostia

Riverkeeper, “[a]pplying the substantial evidence standard of review to a case where no

contested case hearing took place may seem anomalous because there is no formal record

that was presented before an administrative law judge.” 447 Md. at 119; see also Kor-Ko

Ltd. v. Maryland Dep’t of the Env’t, 451 Md. 401, 424–25 (2017) (observing that a

reviewing court may experience problems “in performing [its] duties” because the

Legislature does not require the Department “to express its reasoning in written, detailed

findings of fact and conclusions of law, but rather foster[s] a somewhat looser and elusive

decisional process[]” when issuing certain environmental permits). Notwithstanding some

of the challenges that a reviewing court may encounter when undertaking judicial review

of an environmental permit that is not subjected to a traditional contested case

administrative process,39 the judicial review provisions of Title 1, Subtitle 6 of the

39 In Kor-Ko Ltd. v. Maryland Department of the Environment, we commented on the challenges created by the “legislative mandate that these environmental permits proceed [in a manner] other than through a traditional contested case administrative agency process with detailed findings of fact and conclusions of law, and how, in our view, that impacts the courts’ abilities to afford meaningful review of such actions.” 451 Md. 401, 411 n.8 (2017).

46 Environment Article identify the documents that may be included in the administrative

record upon which a reviewing court may conduct its review. These include draft permits,

statements, or fact sheets explaining the basis for the Department’s determination, and the

Department’s responses to comments submitted in connection with the public participation

process. EN § 1-606(c)(1)–(9).40

In a review for substantial evidence, we ask “whether a reasoning mind reasonably

could have reached the factual conclusion the agency reached.” Anacostia Riverkeeper,

447 Md. at 120 (quotations omitted). We accord deference to the agency’s fact finding and

drawing of inferences when the record supports them. Id.; see also Mayor & Alderman of

City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399 (1979) (“The court may

40 EN § 1-606(c) provides:

Any judicial review of a determination provided for in accordance with § 1- 601 of this subtitle or § 5-204 or § 16-204 of this article shall be limited to a record compiled by the Department or Board, consisting of:

(1) Any permit or license application and any data submitted to the Department or Board in support of the application; (2) Any draft permit or license issued by the Department or Board; (3) Any notice or intent from the Department or Board to deny the application or to terminate the permit or license; (4) A statement or fact sheet explaining the basis for the determination by the Department or Board; (5) All documents referenced in the statement or fact sheet explaining the basis for the determination by the Department or Board; (6) All documents, except documents for which disclosure is precluded by law or that are subject to privilege, contained in the supporting file for any draft permit or license; (7) All comments submitted to the Department or Board during the public comment period, including comments made on the draft application; (8) Any tape or transcript of any public hearings held on the application; and (9) Any response to any comments submitted to the Department or Board. 47 not substitute its judgment on the question whether the inference drawn is the right one or

whether a different inference would be better supported. The test is reasonableness, not

rightness.”) (citation and internal quotation marks omitted). Moreover, we review the

agency’s decision in the light most favorable to it. Anacostia Riverkeeper, 447 Md. at 120

(quotations omitted). Finally, we accord an agency “great deference” with respect to

factual issues that involve scientific matters within an agency’s area of technical expertise.

Carroll County, 465 Md. at 201–02 (citing Anacostia Riverkeeper, 447 Md. at 120); see

also Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69 (1999) (stating that

“the expertise of the agency in its own field should be respected[]”).

2. Review of Matters Committed to the Agency’s Discretion

“With respect to matters committed to agency discretion, a reviewing court applies

the ‘arbitrary and capricious’ standard of review, which is ‘extremely deferential’ to the

agency.” Carroll County, 465 Md. at 202 (citing Harvey v. Marshall, 289 Md. 243, 296–

99 (2005); Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 529 (2004)). “This

standard is highly contextual, but generally the question is whether the agency exercised

its discretion ‘unreasonably or without a rational basis.’” Id. (citing Harvey, 389 Md. at

297; Arnold Rochvarg, Principles and Practice of Maryland Administrative Law, § 20.1 at

255 (2011)).

“For guidance, a reviewing court may look to case law applying the similar standard

in federal administrative law.” Id. (citing Anacostia Riverkeeper, 447 Md. at 120–21;

48 Office of People’s Counsel v. Public Serv. Comm’n, 461 Md. 380, 399 (2018)).41 Under

this standard, a reviewing court may not second-guess an agency’s judgment: “a decision

of less than ideal clarity” will be upheld “if the agency’s path may be reasonably

discerned.” Office of People’s Counsel, 461 Md. at 399 n.16 (quoting Bowman Transp.,

Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)); see also Carroll

County, 465 Md. at 202.

3. Review of the Agency’s Legal Conclusions

With respect to an agency’s legal conclusions, a reviewing court accords the agency

less deference than with respect to findings of fact or discretionary decisions. Carroll

County, 465 Md. at 202–03.42 “An agency decision based on regulatory and statutory

41 In Office of People’s Counsel v. Public Serv. Comm’n, 461 Md. 380, 399 n.16 (2018), we noted that the “leading case defining the federal standard is Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L.Ed.2d 443 (1983).” We observed that in State Farm,

the Supreme Court identified several factors that could render an agency action arbitrary or capricious, including whether: (1) there is a rational connection between the facts found and the choice made; (2) the decision was based on a consideration of the relevant factors; (3) there has been a clear error of judgment; (4) the agency relied on factors which Congress has not intended it to consider; (5) the agency has entirely failed to consider an important aspect of the problem; (6) there is an explanation for a decision that runs counter to the evidence; and (7) the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Office of People’s Counsel, 461 Md. at 399 n.16. 42 In Comptroller of Maryland v. FC-GEN Operations Investments LLC, 482 Md. 343, 360 (2022), we explained that the phrase “errors of law” in connection with judicial review of a decision of an administrative agency “encompasses a variety of legal challenges, including: (1) the constitutionality of an agency’s decision; (2) whether the agency had

49 interpretation is a conclusion of law.” Kor-Ko Ltd., 451 Md. at 412 (quoting Carven v.

State Ret. & Pension Sys. of Md., 416 Md. 389, 406 (2010)). “[A] court will not uphold an

agency action that is based on an erroneous legal conclusion.” Carroll County, 465 Md. at

203 (citing Anacostia Riverkeeper, 447 Md. at 122). That said, we apply the following

principles of deference with respect to the Department’s interpretation of the statutes that

it administers and the rules that it has promulgated in connection therewith.

a. Deference to Agency’s Interpretation of Statutes that it Administers

When a party challenges the agency’s interpretation of a statute it administers, the

court must determine “how much weight to accord that interpretation, keeping in mind that

it is always within the court’s prerogative to determine whether an agency’s conclusions

of law are correct.” Id. (cleaned up). When considering the deference owed to a state

agency’s interpretation of the law, this Court has applied “a sliding-scale approach” that

“is similar to federal Skidmore deference.”43 Comptroller of Maryland v. FC-GEN

jurisdiction to consider the matter; (3) whether the agency correctly interpreted and applied applicable case law; (4) and whether the agency correctly interpreted an applicable statute or regulation.” We explained that although we do not apply any agency deference when undertaking a review of the first three types of legal challenges, we occasionally apply agency deference when reviewing errors of law related to the fourth category. Id. 43 Skidmore deference, which derives its name from Skidmore v. Swift & Co., 323 U.S. 134 (1944), was the primary deference doctrine used by the federal courts from 1944 until it was displaced by Chevron deference in 1984 with the U.S. Supreme Court’s articulation of a more highly deferential standard that federal courts apply when an agency interprets a statute that the agency is charged with administering. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). In Skidmore, the Court stated that the weight a court will give an agency interpretation “will depend on the thoroughness of the evidence in its consideration, the validity of its reasoning, its

50 Operations Investments LLC, 482 Md. 343, 363 (2022) (citing Arnold Rochvarg,

Principles and Practice of Maryland Administrative Law, §§ 19.1–19.3 at 243–49 (2011)).

The weight given to an agency’s interpretation will vary, depending on a number of factors.

Id. “We give more weight when the interpretation resulted from a process of reasoned

elaboration by the agency, when the agency has applied that interpretation consistently

over time, or when the interpretation is the product of contested adversarial proceedings or

formal rule making.” Id. (quoting Carroll County, 465 Md. at 203–04 (citing Baltimore

Gas & Electric Co. v. Pub. Serv. Comm’n, 305 Md. 145, 161 (1986))) (internal quotation

marks omitted).44

consistency with earlier and later pronouncements, and all those facts which give it the power to persuade, if lacking power to control.” 323 U.S. at 140. 44 In Comptroller of Maryland v. FC-GEN Operations Investments LLC, 482 Md. 343, 363 (2022) and Maryland Department of the Environment v. County Commissioners of Carroll County, 465 Md. 169, 203 (2019), we restated this Court’s articulation of the agency deference factors set forth in Baltimore Gas & Electric Co. v. Public Service Commission, 305 Md. 145, 161 (1986). We observed that “Skidmore is a direct ancestor” of Baltimore Gas & Electric Co., which we described as being “the leading case of this Court concerning the degree of judicial deference owed to state agency actions.” Carroll County, 465 Md. at 206 n.32; see also FC-GEN, 482 Md. at 362–63. In Baltimore Gas & Electric Co., this Court stated:

The weight to be accorded an agency’s interpretation of a statute depends on a number of considerations. Although never binding upon the courts, the contemporaneous interpretation of a statute by the agency charged with its administration is entitled to great deference, especially when the interpretation has been applied consistently and for a long period of time . . . . Another important consideration is the extent to which the agency engaged in a process of reasoned elaboration in formulating its interpretation of the statute. When an agency clearly demonstrates that it has focused its attention on the statutory provisions in question, thoroughly addressed the relevant issues, and reached its interpretation through a sound reasoning process, the

51 b. Deference to Agency’s Interpretation of its Regulations

When the construction of an administrative regulation is an issue—as opposed to a

question of statutory interpretation—“deference is even more clearly in order.” Kor-Ko

Ltd., 451 Md. at 412 (cleaned up) (quoting Maryland Transp. Auth. v. King, 369 Md. 274,

288 (2002)). We grant such deference to an agency’s interpretation of its regulations

because

agency rules are designed to serve the specific needs of the agency, are promulgated by the agency, and are utilized on a day-to-day basis by the agency. A question concerning the interpretation of an agency’s rule is as central to its operation as an interpretation of the agency’s governing statute. Because an agency is best able to discern its intent in promulgating a regulation, the agency’s expertise is more pertinent to the interpretation of an agency’s rule than to the interpretation of its governing statute. Id. at 412–13 (quoting King, 369 Md. at 289) (additional citations and quotation marks

omitted). “Put another way, the courts do not play the role of an über administrative agency

in reviewing the actions of state or local administrative bodies, but, rather we exercise

discipline in our review so as not to cross the separation of powers boundary.” Id. at 413.

C. The Department’s Decision to Regulate AFOs Through a General Permit Scheme—Which Requires Technology Based Effluent Limitations to Address Water Quality Standards With the Ability to Impose Additional Water Quality

agency’s interpretation will be accorded the persuasiveness due a well- considered opinion of an expert body . . . . In addition, the nature of the process through which the agency arrived at its interpretation is a relevant consideration in assessing the weight to be accorded the agency’s interpretation. If the interpretation is the product of neither contested nor adversarial proceedings nor formal rule promulgation, it is entitled to little weight.

305 Md. at 161–62. 52 Controls for a Particular Operation if They Are Determined to be Necessary to Protect a Particular Waterway—Is Reasonable and Lawful Assateague contends that the Department’s failure to include uniform water quality

based effluent limitations in the General AFO Permit violates the Clean Water Act and

Maryland’s water pollution control law. Assateague’s challenge in this regard is not

limited to ammonia emissions, but is also related to all pollutants that water quality based

effluent limitations are intended to address. Assateague states that, where technology

based effluent limitations are insufficient to achieve the water quality standards, water

quality based effluent limitations must be included in the general discharge permit.45

Assateague argues that the general discharge permit is “silent” as to water quality based

effluent limitations “and only briefly discusses TMDLs or water quality standards.”

Assateague asserts that there is no “detailed or rational explanation for the Department’s

determination that CAFOs operating pursuant to the general discharge permit ‘will not

cause or contribute to the violation of water quality standards, and therefore [water quality

based effluent limitations] are not necessary.’” Assateague criticizes this statement in the

permit, claiming that the Department is simply repeating the Department’s conclusion that

it made in connection with the issuance of its 2009 General Permit, which Assateague

45 Seemingly built into Assateague’s argument is the conclusion that the technology based effluent limitations required by the General AFO permit scheme, are, in fact, insufficient to achieve water quality standards, and therefore, the permit must contain water quality based effluent limitations. As we discuss in more detail herein, the Department’s determination that technology based effluent limitations, approved on a site-by-site basis, combined with the Department’s ability to add additional water quality controls depending upon the particular operation, as well as the operation’s proximity to a particular waterway and its water quality, is not arbitrary or capricious. 53 contends “predates the establishment of the Bay TMDL, the creation of the current Bay

Model, and the current federal CAFO rule, not to mention many of the scientific studies

and technical reports that were in the record before the Department when it made its

determinations with respect to the current Permit.”

The Department asserts that its general discharge permit scheme for AFOs not only

complies with the Clean Water Act and Maryland’s water pollution control law, but is also

a reasonable method for imposing water quality standards on AFOs. The Department

points out that the general discharge permit scheme is consistent with the EPA’s CAFO

regulations and the Department’s AFO regulations, which have been in effect for over 13

years, as well as the two prior permits issued pursuant to the statutory five-year permit

cycle, both of which were upheld by the Appellate Court of Maryland.

The Department contends that the 2019 General Permit complies with water quality

standards by requiring technology based effluent limitations through site-specific best

management practices that must be approved prior to a particular AFO obtaining permit

coverage. The Department notes that the general discharge permit then provides for

additional, water quality based controls during the permit review process, and at any time

after the issuance of the permit, to protect, maintain, and restore water quality and the

existing and designated waters of the State. In other words, rather than establishing

uniform water quality based effluent limitations that would apply to all operations without

regard to the geographic location of the operation, including its proximity to any particular

nearby waterway (or the specific water quality of the waterway in question), the

Department asserts that its general discharge permit framework requires the permittee—

54 through the plan writer—to research, identify, and implement the permit controls

appropriate to its design and location as part of the permitting process.

At the outset, it is important to note that the Department does not start from scratch

each time it issues a water pollution control permit for a particular pollutant source. As

noted above, the Department is required under federal and state law to reissue or replace

water pollution control permits every five years. For this reason, the administrative record

for the 2019 General Permit includes the administrative record for the previous iterations

of this same permit, including the Department’s initial rationale and methodology for

choosing to regulate this pollutant source—AFOs—through the same general discharge

permit regulatory framework established by the EPA regulations, as well as its own

We observe that Assateague’s general arguments concerning the Department’s

failure to include uniform water quality based effluent limitations in the 2019 General

Permit are not simply directed to this particular permit, but to the general CAFO

regulatory framework established over a decade ago by the EPA and by the Department.

Assateague argues that the AFO general discharge permit framework—which does not

include uniform water quality based effluent limitations—does not satisfy the water quality

standards under federal and state law because it relies only on technology based effluent

limitations.

As noted above, Assateague has challenged both prior iterations of this same permit.

Because some of Assateague’s arguments being made here are similar to the arguments

that were made in those cases (and because the administrative record related to the 2019

55 General Permit includes the former iterations of the permit, as well as the Department’s

rationale and methodology for the general permit structure), it is useful to start our

discussion with those cases.

1. Assateague’s Challenge to the 2009 General Permit In Assateague Coastkeeper, 200 Md. App. at 665, Assateague challenged the

Department’s Final Determination to issue the 2009 AFO General Permit. Assateague’s

challenge to the 2009 General Permit predated the General Assembly’s changes to the

statute, which eliminated contested case hearings in connection with the issuance of general

permits under the State’s water pollution control law. See 2009 Md. Laws, ch. 651.

Accordingly, Assateague’s challenges to that permit were considered within the context of

the APA, with proceedings before an administrative law judge (“ALJ”) and a final decision

maker (“FDM”), followed by judicial review in the circuit court and the Appellate Court.

Assateague Coastkeeper, 200 Md. App. at 680. Assateague’s arguments were rejected at

all levels. Id. at 669–70.

In seeking to have the 2009 General Permit overturned, Assateague alleged that the

permit violated both federal and state law, making three primary arguments. First,

Assateague argued that the 2009 General Permit violated federal law because it

impermissibly narrowed the scope of CAFOs that required an NPDES permit. Id. at 683.

Second, Assateague contended that the permit conditions for MAFO litter storage were

insufficient because the Department ignored scientific studies related to poultry manure

storage, and that it therefore “acted arbitrarily and capriciously” in issuing the general

discharge permit. Id. Third—and similar to Assateague’s argument in this case—it

56 asserted that the 2009 General Permit structure “failed to assure compliance with

applicable water quality standards before the issuance of permit coverage” to individual

permittees. Id. Assateague argued that the Department could not, “without sufficient

evidence, presume that compliance with the technical standards in the [General] Permit

will assure compliance with all the various water quality standards applicable in

Maryland.” Id. (Internal citations omitted).

In connection with the administrative proceedings, the Department submitted

affidavits from Robert M. Summers, Ph.D., who was the Department’s Deputy Secretary

at that time, and from Dinorah Dalmasy, a Senior Regulatory and Compliance Engineer

with the Department. Id. at 680–81. In his affidavit, Dr. Summers explained the

Department’s process, methodology, and the scientific data upon which it relied to

establish the MAFO litter storage requirements. Id. at 681. The details of the Department’s

methodology are described at length in the Appellate Court’s opinion. Id. at 692–97.

Ms. Dalmasy explained the Department’s development of TMDLs for water bodies

in the State that had been identified as being impaired by pollutants, and how the 2009

General Permit was consistent with Maryland’s watershed-based approach to developing

its TMDLs, which had been approved by the EPA:

TMDLs establish the assimilative capacity of a waterbody, i.e., the maximum allowable load of the specific substance the waterbody can receive without violating water quality standards. Maryland’s nutrients and bacteria TMDLs include load allocations (LAs) for nonpoint sources and waste load allocations (WLAs) for point sources. The LA component of a TMDL includes allocations to agricultural, landuse, urban, and forested areas; the WLA includes allocations to traditional point sources (e.g., waste water treatment plants) and NPDES-regulated stormwater discharges. MDE’s current modeling tools and data resolution do not allow quantitative

57 allocations to specific [AFO] sites. Rather, an overall LA is estimated for each impaired water quality segment, as one aggregate load that includes all agricultural practices (e.g., cropland, pasture, [AFOs]). Maryland’s nutrient and fecal bacteria TMDL analyses developed to date include an estimate of the baseline agricultural landuse load as part of the total watershed nutrients or bacteria budget. Maryland’s bacteria and nutrient TMDLs apply a watershed based approach, which considers all potential pollutant sources and estimates load reduction targets for those sources necessary for the attainment of the State water quality standards. As an example, in Maryland’s nutrient TMDLs to date, all of which have been approved by EPA, the nonpoint source loads were computed in one of two ways:

1. As the product of observed concentrations and estimated flows. These loads account for contributions from atmospheric deposition, septic tanks, agricultural land (cropland, pasture, animal feeding operations), forest, and urban land. The percentages of these loads by land use were determined using ratios of land use and load coefficients by land use from the Chesapeake Bay Program watershed model.

2. As the summation of all of the individual land use areas and multiplying by the corresponding land use loading coefficients from the Chesapeake Bay Program watershed model. Maryland’s TMDLs apply a watershed-based approach, which considers all potential pollution sources . . . and estimates load reduction targets for those sources necessary for the attainment of State water quality standards. The agricultural load allocation includes all source categories (i.e., cropland, pastures, AFOs/CAFOs, MAFOs) but they are not broken out or quantified separately from this aggregated load. All currently approved nutrients and bacteria TMDLs were developed prior to the issuance of the January 2, 2009 Final Determination to issue the General [] Permit for [AFOs].

Id. at 715–16. Ms. Dalmasy stated that the 2009 General Permit was “consistent with

existing approved TMDLs, since those TMDLs do not provide specific load allocations to

this source of pollution.” Id. at 716. She further explained that “the new permit

requirements will result in more stringent control of potential pollutants from these sources;

and that the permit’s requirements will ensure that no new discharges will increase the

58 pollutant loads in watersheds with established TMDLs.” Id. Ms. Dalmasy concluded that

the 2009 General Permit “ensure[d] compliance with . . . the Clean Water Act,” and that it

“contains measures intended to ensure that [AFO] discharges do not cause or contribute to

violations of water quality standards.” Id.

In upholding the 2009 General Permit, the ALJ determined that the Department was

not “narrowing the definition of CAFOs,” but was “actually expanding the group of AFOs

that must submit to some sort of permitting requirement in order to operate and store

manure.” Id. at 684. The ALJ likewise rejected Assateague’s assertion that the

Department’s decision to regulate MAFOs differently from CAFOs for manure storage

purposes was arbitrary and capricious, noting that MDE’s decision was based on available

scientific information. Id. Finally, the ALJ found that the 2009 General Permit complied

with federal regulations governing water quality, noting: (1) all of Maryland’s water quality

standards had been approved at that point by the EPA; and that (2) the permit was consistent

with the existing approved standards. Id. Thereafter, Assateague filed exceptions to the

ALJ’s decision with the FDM.

The FDM upheld the Final Determination to issue the 2009 General Permit,

concluding that compliance with the permit will “result in a reduction in pollutants to State

waters.” Id. at 688. In support of its conclusion, the FDM noted that the EPA had approved

Maryland’s use of a watershed-based approach to developing TMDLs. Id. at 717. The

FDM stated that such an approach “considers all pollutant sources . . . and estimates load

reduction targets for those sources necessary for the attainment of State water quality

standards.” Id. at 717 n.31. The FDM explained:

59 While no specific waste load is allocated to CAFOs in Maryland’s TMDLs, a portion of the load allocation includes contributions from existing CAFOs. The TMDLs contain load reduction targets that are not specific for individual land uses or facilities. Methods available to Maryland to accomplish the load reduction targets that include diverse programs that address air deposition, septic system discharges, environmental site design, and a host of BMPs, including not only those incorporated in the [General Permit], but also such things as conservation tillage, off-stream watering, and forest buffers.

The pollutant contributions from CAFOs already in existence that will acquire NPDES permits for the first time under the [General Permit] are taken into account in the existing LA and therefore are included in the reduction targets. Further, the requirements of the [General Permit] are quite stringent, and it is reasonable to conclude that compliance with the [General Permit] will reduce the loading to the impaired waterbody. More specifically, the [General Permit] will regulate the discharges from a significant number of CAFOs that previously had not been required to obtain a general or an individual permit. For the first time, these CAFOs will be subject to stringent requirements aimed at reducing pollutant discharges to State waters. Because this represents a net reduction, it is not prohibited by 40 C.F.R. § 122.4(i). As the TMDLs are further implemented, additional reductions may be required of the CAFO and nonpoint sources to fully achieve the TMDL.

Where no TMDL has been prepared for an impaired water, an existing CAFO subject to the [General Permit] for the first time will also be reducing its contribution to the impaired water. At the time a TMDL is prepared, consideration will be given to the contribution of the CAFO, and it is possible that further reductions will be required.

Id. at 717–18. With respect to new CAFOs, the FDM noted that they would be subject to

the zero discharge requirement under federal regulations, which promotes “up-front design,

construction, operation, and maintenance to ensure that predictable discharges do not

occur.” Id. at 717 n.30 (quoting 73 Fed. Reg. 70459 (Nov. 20, 2008)). After the circuit

court affirmed the Department’s Final Determination, Assateague appealed to the

Appellate Court, which also affirmed the Department’s Final Determination.

60 With respect to Assateague’s argument that the Department had insufficient

evidence concerning the water quality impacts related to litter storage, the Appellate Court

determined that the Department had a reasonable basis for establishing its litter storage

requirements. Id. at 697. The Appellate Court similarly rejected an argument made by

Assateague that the permit had not done enough to regulate MAFOs, and was “arbitrary

and capricious because it [was] contrary to the policy goals” of Section 9-302(a) of the

Environment Article. Id. at 697–98 (cleaned up). The Appellate Court agreed with the

Department’s position that its decision to regulate MAFOs—which were previously

unregulated—was consistent with the statutory policy goal to “prevent, abate, and control

pollution of the waters of [the] State,” and that its review of the Department’s decision to

issue the general discharge permit was “limited to the narrow issue of whether there was

substantial evidence to support” the Department’s determination. Id. at 698. The court

observed that Assateague’s policy arguments were not a basis for reversing the agency’s

determination. Id.

The Appellate Court also addressed Assateague’s assertion that the 2009 General

Permit violated the federal regulations governing water quality standards. Id. at 704.

Before the Appellate Court, Assateague framed its arguments as follows. Id. at 704–05.

First, Assateague argued that the 2009 General Permit violated the federal regulations

because it authorized “new discharges” to impaired waters without demonstrating

compliance with the requirements of 40 C.F.R. § 122.4(i), which prohibit the issuance of

an NPDES permit to “a new discharger, if the discharge from its construction or operation

will cause or contribute to the violation of water quality standards.” Id. at 704. Second,

61 Assateague asserted that, under federal regulations, the Department was required to

conduct a case-by-case analysis for each CAFO to determine whether water quality based

effluent limitations are necessary for the specific NPDES to meet water quality standards

for receiving bodies, and that the 2009 General Permit failed to comply with this

requirement. Id. at 705 (citing 40 C.F.R. § 122.44(d)(1)). Assateague further asserted

that—given that the Department had not established a TMDL for all waterways that might

be impacted by CAFOs, and even for CAFOs that discharge into an impaired waterway in

which a TMDL has been established—the Department failed to identify the quantitative

significance of any pollutant offsets. Id. at 714. Assateague contended that, in the absence

of “particularized and scientific analyses of the impacts of the new discharges,” the

Department could not “properly conclude that the [2009 General Permit] would have no

significant impact on the impaired waterway(s).” Id. (Cleaned up).

For its part, the Department defended the overall framework of the general discharge

permit, making many of the same arguments that it has put forth in this case. Concerning

Assateague’s first argument, the Department pointed out that Assateague’s interpretation

of the federal regulation was not the view accepted by the EPA—which is that a previously

unpermitted pollutant source that becomes permitted under the 2009 General Permit

scheme does not “cause or contribute to the impairment if it constitutes a net reduction in

the loading of the substance causing the impairment.” Id. at 705 (Emphasis added)

(internal citations omitted) (footnote omitted). The Department also asserted that the 2009

General Permit did not violate the federal regulation prohibiting the issuance of a discharge

permit if its issuance would “cause or contribute to the violation of water quality standards”

62 because under both federal and state regulations, CAFOs are subject to the “zero discharge”

standard. Id. at 706 (citing 40 C.F.R. § 412.46; COMAR 26.08.03.09B). The Department

argued that the general discharge permit’s requirement that AFOs implement Department-

approved Required Plans, “which are farm-specific plans to ensure protection of water

resources through appropriate management practices, provides further assurance that [2009

General Permit]-authorized facilities will not violate water quality standards.” Id. at 706

(internal citations omitted). The Department defended the structure of the general

discharge permit by stating that it reviews each plan “to make sure that the specific

practices proposed are sufficiently protective given the circumstances of the specific farm

and the specific waterway that may be affected by the farm’s operation,” giving the

Department “the opportunity to impose additional restrictions, identify specific load

allocations, and even kick the farm out of the [general discharge permit] and require an

individual NPDES permit.” Id.

Concerning the competing interpretations of the language “cause or contribute” in

the federal regulations, the Appellate Court observed that the Department is “the agency

tasked with enforcing and administering federal regulations regarding water quality

standards, see [EN] § 9-324, and that [the reviewing courts] give considerable weight to an

administrative agency’s interpretation and application of the statute which the agency

administers, recognizing its expertise in the field.” Id. at 713–14 (cleaned up) (quoting

Najafi v. Motor Vehicle Admin., 418 Md. 164, 173–74 (2011)) (additional citations

omitted). The Appellate Court determined that the Department’s “construction of 40

C.F.R. § 122.4(i) as allowing the consideration of pollution offsets in determining whether

63 a discharge ‘causes or contributes’ to a violation of water quality standards, is reasonable”

and, accordingly, the court would not “substitute [its] judgment for that of the agency.” Id.

at 714.

As for Assateague’s second argument, the Appellate Court pointed out that Ms.

Dalmasy had submitted an affidavit describing the Department’s process for establishing

TMDLs, how the general discharge permit scheme fit within the overall TMDL framework,

and the Department’s conclusion “that the [general discharge permit] ‘ensures compliance

with water quality standards as required by the Clean Water Act,’ and it ‘contains measures

intended to ensure that [AFO] discharges do not cause or contribute to violations of water

quality standards.’” Id. at 715–16. The Appellate Court observed that the FDM credited

Ms. Dalmasy’s affidavit in upholding the Department’s Final Determination. Id. at 716–

17. With respect to existing CAFOs, the court noted that the FDM concluded that the

issuance of the general discharge permit to existing CAFOs in impaired waterways—

regardless of whether a TMDL has been promulgated—would not cause or contribute to a

violation of water quality standards. Id. The Appellate Court pointed out that, in support

of its conclusion, the FDM had noted that the “EPA has approved Maryland’s use of a

watershed-based approach in developing TMDLs.” Id. at 717. After summarizing the

FDM’s findings and conclusions, the Appellate Court stated that the FDM’s “finding here,

that the issuance of the [general discharge permit] ‘will not cause or contribute to the

violation of the water quality standards,’ is a factual finding, or at least a mixed question

of fact and law, which limits [the court’s] review to whether there was substantial evidence

in the record to support the finding and whether a ‘reasoning mind’ could have reached

64 that conclusion.” Id. at 718. The court determined that there was a substantial basis for

the FDM’s decision that the 2009 General Permit would not “‘cause or contribute’ to a

violation of water quality standards.” Id.

The Appellate Court similarly rejected Assateague’s assertion that the 2009 General

Permit “further violates federal law because it fails to comply with other applicable federal

laws governing water quality standards.” Id. at 719, 721. The Appellate Court noted that

the 2009 General Permit reflected the process by which the Department reviews permit

applications—the filing of the notice of intent and Required Plan—which are subject to

public review and comment, and observed that permit coverage may not be approved prior

to a completion of the public participation process. Id. at 721 (citing 2009 General Permit,

Part III.C.3.). The Appellate Court determined that it “was within the province of [the

Department] to determine that this process is sufficient to ensure that the issuance of new

permits will not cause or contribute to the violation of water quality standards[,]” and that

the court would not substitute its judgment for that of the agency on this issue. Id.

Finally, the court also rejected Assateague’s arguments that the 2009 General Permit

was less stringent than federal law, concluding that, by its plain terms, the permit was

“broader, not less stringent, than federal law.” Id. at 722–24.

2. Assateague’s Challenge to the 2014 General Permit In 2014, MDE published its Final Determination to issue the 2014 General

Discharge Permit. Food and Water Watch and Assateague (collectively “Appellants”)

challenged the permit, contending that it failed to comply with federal monitoring

requirements. Food and Water Watch v. MDE, 2018 WL 2203175 at *1 (Md. App. May

65 14, 2018). The Department defended the 2014 General Permit by pointing out that, under

the Clean Water Act and the federal regulations, the Department has discretion in

determining what conditions shall be in the NPDES permit, including technology based

effluent limitations, the duration of the permit, best management practices, and monitoring

requirements to assure compliance with the permit limitations. Id. at *5 (citing 33 U.S.C.

§ 1318(a)(1)(A)(iii)-(iv); 40 C.F.R. § 122.44(i)(1)). The Department noted that, under the

EPA regulations, the “EPA specifically acknowledges that these requirements may not be

appropriate for every NPDES permit” and that the Department exercises discretion in

requiring additional best management practices as it deems necessary—discretionary

authority it expressly retained in the 2014 General Permit. Id.

The Appellate Court affirmed the Department’s decision. First, the Appellate Court

concluded that the 2014 General Permit included measures to ensure compliance with

federal and state law because the permit incorporated each permittee’s Required Plan,

which, if not implemented, constituted a violation of the permit. Id. at *9. The Appellate

Court also rejected the Appellant’s argument that the general discharge permit’s effluent

limitations in the form of best management practices could “not replace [water quality]

effluent limitations for compliance.” Id. at *9–10. The court noted that federal law allows

for best management practices in the place of numeric effluent limitation guidelines when

“numeric effluent limitations are infeasible” or “the practices are reasonably necessary to

achieve effluent limitations and standards or to carry out the purposes and intent of the

Act.” Id. at *10 (citing 40 C.F.R. § 122.44(k)(3)-(4)). The court concluded that the 2014

General Permit was “reasonable and necessary to carry out the intent of the [Clean Water

66 Act], as numeric limitations are infeasible because the 2014 [General] Permit is [a] zero

discharge [permit].” Id.

The Appellate Court similarly rejected Appellant’s argument that the Department’s

failure to include monitoring violated 40 C.F.R. § 122.44(i), which provides that “each

NPDES permit shall include conditions meeting the following [monitoring] requirements

when applicable[.]” Id. at *10. The court deferred to the Department’s determination that

“when applicable” does not mean that monitoring is required in every case, and that,

because the 2014 General Permit is a zero discharge permit, monitoring is unnecessary to

ensure compliance. Id. at *11. The Appellate Court held that there was substantial

evidence in the record that the 2014 General Permit complied with the EPA’s regulations,

and concluded that the Department’s decision was rational and lawful. Id.

3. The 2019 General Permit Framework Complies with Federal and State Laws Our reasons for upholding the Department’s Final Determination with respect to the

2019 General Permit are consistent with the reasons expressed by our colleagues in the

above-described cases involving challenges to the two prior iterations of this permit. The

federal and state laws and regulations that establish the general framework for this

particular type of pollutant source have not changed since those cases were decided.

Starting with federal law, the Clean Water Act expressly provides for a tiered

approach to water quality controls. As discussed above, under the Act, technology based

effluent limitations are the first round of controls in the effort to achieve water quality

standards. Carroll County, 465 Md. at 186 (citing 33 U.S.C. § 1311(b)(1)(A)). The Act

directs the EPA to issue nationally applicable effluent guidelines for classes or categories

67 of point sources. 33 U.S.C. § 1314(b). The EPA has chosen to regulate CAFOs—as a

pollutant-source class—through a zero discharge general permit scheme, which prohibits

all discharges of pollutants to surface and ground waters from CAFO production areas. 40

C.F.R. § 412.46. Under the federal regulations, each CAFO is required to implement

technology based effluent limitations in the form of best management practices that are

tailored to the particular site and operation. See 40 C.F.R. § 122.42(e). The Department

has incorporated by reference the EPA’s CAFO performance standards into Maryland AFO

regulations. See 40 C.F.R. § 412.46; COMAR 26.08.03.09B.

The Department’s AFO general discharge permit model is also consistent with the

State’s water pollution control law. As noted above, the General Assembly has conferred

considerable discretion in the Department to: (1) determine whether the discharge will meet

all state and federal water quality standards, and appropriate effluent limitations; and (2)

establish the conditions necessary to prevent a violation of federal and state laws. See EN

§ 9-324(a) (stating that “the Department may issue a discharge permit if the Department

finds that the discharge meets: (1) All applicable State and federal water quality standards

and effluent limitations; and (2) All other requirements of this subtitle[]”) (emphasis

added); EN § 9-326 (stating that “[t]he Department may make the issuance of a discharge

permit contingent on any conditions the Department considers necessary to prevent

violation of this subtitle[]”) (emphasis added).

In addition to its permitting authority, the Legislature has also given the Department

extensive regulatory and rulemaking authority. See EN § 9-313. In connection with this

authority, the General Assembly does not mandate that the Department adopt a particular

68 type or types of discharge permits for different pollutant sources. Rather, the Legislature

has given the Department considerable discretion in the development of its permitting

schemes. The Legislature recognizes that there is no “one-size-fits all” approach to

regulating water pollution. The water pollution control law specifically states that the

Department’s rules and regulations may “[i]mpose, as circumstances require, different

requirements for different pollutant sources and for different geographical areas[.]” EN

§ 9-313(c) (emphasis added).

Since 2009, the Department has adopted the same regulatory model as the EPA.

Under both the federal and state regulations, the AFO permittee is required to prepare a

Required Plan providing conditions that are tailored to the particular operation,

surrounding environment, and where applicable, affected waterway(s). The plans are

prepared by plan writers who are licensed and certified by the Maryland Department of

Agriculture. COMAR 26.08.01.01B(53-1), 15.20.04, 40 C.F.R. § 122.42(e)(1)-(6). The

plan writers are required to identify environmental hazards, such as waste storage, animal

confinement, proximity to waterbodies and water quality, and develop mitigation measures

in accordance with the standards and specifications set forth in the NRCS manual.

COMAR 26.08.01.01B(53-1), 15.20.04, 40 C.F.R. § 122.42(e)(1)-(6). The plans must be

based upon an assessment of “possible resource concerns,” and they must implement

applicable NRCS standards where resource concerns exist. COMAR 26.08.01.01B(53-1),

15.20.04, 40 C.F.R. § 122.42(e)(1)-(6). Under the requirements of the National Planning

and Procedures Handbook, plan writers are required to evaluate site-specific practice

effects on identified resource concerns and develop a combination of practices that mitigate

69 all negative effects. See NPPH, 180-600-I. The Required Plan must also identify the

distance to, and name of, the nearest waterbody, and the watershed status, including

whether there are any TMDL impairments established for the particular watershed.

The Department reviews each Required Plan to ensure that its practices are

sufficiently protective given the specific circumstances of the farm, the surrounding

topography, and the proximity and condition of any waterway that may be affected by the

farm’s operation. The Department retains the authority to require additional best

management practices and water quality controls if it determines, in its sole discretion, that

they are necessary to maintain water quality standards. 2019 General Permit, Part VII.K.2.

The Department also retains the discretion to require that an individual AFO obtain an

individual discharge permit. 2019 General Permit, Part V.II.M.

Under both federal and state regulations, the Required Plans are reviewed and

approved prior to the individual AFO obtaining coverage under the general discharge

permit. 40 C.F.R. § 122.23(h)(1); COMAR 26.08.04.09N. The Required Plans are subject

to public review and comment, and a person aggrieved by the Department’s final approval

of a Required Plan may request a contested case hearing. COMAR 26.08.04.09N(3)(l)(ii).

The Department asserts that its AFO general discharge permit framework is not only

consistent with this authority, but is particularly appropriate with respect to general

discharge permits for AFOs, which are located in various geographic areas across the State,

including portions of Garrett County and Worcester County that are located outside the

Chesapeake Bay watershed. The Department explains that its general discharge permit

framework allows it to consider those regional differences and tailor each permit’s

70 requirements to the specific AFO’s impact to nearby waterways, depending on the

characteristics of that particular waterway.

As discussed above, the Legislature has given broad discretion to the Department to

establish permit terms and conditions as the Department determines are necessary. The

text of the statute does not instruct the Department as to how it must make these

determinations or the water quality controls that must be included. When reviewing

matters that are committed to agency discretion, we apply an “arbitrary and capricious”

standard of review, which is extremely deferential to the administrative agency. Carroll

County, 465 Md. at 202; see also Anacostia Riverkeeper, 447 Md. at 120 (stating that courts

are to accord an agency “great deference regarding factual questions involving scientific

matters in its area of technical expertise[]”). In this case, the Department, through the

promulgation of formal regulations, has chosen to adopt the same general discharge permit

framework established by federal regulations—a zero discharge general permit that

imposes technology based effluent limitations in the form of best management practices as

a first level of control, while retaining discretion and authority to impose additional water

quality controls based upon the particular farming operation, and its location to a particular

impaired waterway. We determine that the Department’s decision to continue to utilize

the same discharge permit regulatory framework for the 2019 General Permit—a

permitting model that has been in place for over a decade and utilized in two prior permit

iterations—is not arbitrary or capricious and is consistent with the discretionary authority

conferred upon the Department under both federal and state law.

71 Assateague also challenges the 2019 General Permit because it asserts that the AFO

permit framework “predates the establishment of the Bay TMDL, the creation of the

current Bay Model, and the current federal CAFO rule,[46] not to mention many of the

scientific studies and technical reports that were in the record before the Department when

it made its determinations with respect to the current Permit.” In other words, Assateague

appears to be arguing that the AFO general discharge permit framework is out-of-date. We

disagree. As discussed above, the federal and state regulations that establish a general

discharge permit structure for this particular pollutant source have not changed.

Assateague does not point to any evidence in the record in this case that supports the notion

that the EPA’s and the Department’s regulatory permitting framework for this particular

pollutant source is no longer reasonable or fails to comply with federal or state law.

With respect to Assateague’s argument that the AFO general discharge permit

framework predates the establishment of the Bay TMDL and the creation of the current

46 Although it is not entirely clear what “EPA Rule” Assateague refers, as discussed in detail, the EPA regulatory framework that establishes a general discharge permit for the CAFO industry has not changed. To the extent that Assateague is referring to the guidance set forth in the NPDES Permit Writers’ Manual for Concentrated Animal Feeding Operations, it states that “situations could arise where the permitting authority needs to impose more stringent requirements,” such as where a CAFO discharges to an impaired waterbody or “where an analysis of frequency, duration and magnitude of the anticipated discharge” indicates the “reasonable potential” to affect water quality. EPA NPDES Permit Writers’ Manual for Concentrated Animal Feeding Operations, February 2012, (“NPDES Permit Writers’ Manual for CAFOS”), 4-36 (emphasis added). In other words, in the EPA’s view, water quality based effluent limitations may be needed in specific instances following what amounts to a site-specific analysis. This language is consistent with the Department’s permit conditions, which give the Department the discretion to impose additional water quality controls on a site-specific basis, depending upon the location of a particular operation, its proximity to a specific waterway, and the environmental health of that waterway. 72 Bay Model and therefore is no longer valid, we disagree. Although the Bay TMDL was

not adopted until December 2010, it was being developed at the same time as the 2009

General Permit. As we noted in Anacostia Riverkeeper, the development of the

Chesapeake Bay TMDL was a decades-long process. 447 Md. at 106. In that case, we

rejected a similar argument made by Montgomery County in connection with its challenge

to the Department’s issuance of a stormwater permit. Specifically, we noted that, although

the Department issued Montgomery County’s permit before the Chesapeake Bay TMDL

was established and Maryland’s Phase I WIP was approved, these documents were not

prepared in isolation, and we therefore observed that it would be “improper to view the

[final Chesapeake Bay TMDL] in a vacuum as a single, isolated effort to restore water

quality to the Chesapeake Bay.” Id. (quoting American Farm Bureau, 984 F. Supp. 2d at

298). We reject Assateague’s argument for similar reasons here.

Moreover, the administrative record in this case reflects that, in its development of

TMDLs and the associated load and wasteload allocations, the Department factored in the

AFO general discharge permit scheme. Specifically, in connection with the 2009 General

Permit, Ms. Dalmasy described the Department’s inclusion of the AFO general discharge

permit structure as part of the establishment of the State’s estimated agricultural load

allocations necessary for the attainment of State water quality standards.

Maryland’s approved phased WIP established the State’s roadmap for how it will

meet its pollutant allocations under the Bay TMDL. Maryland’s Phase I WIP, which was

completed in December 2010, allocated allowable loads of nitrogen, phosphorus, and

sediments among different pollutant sources and identified statewide strategies for

73 reducing the levels of these pollutants that are impairing the Chesapeake Bay. Phase I

WIP, iii. With respect to the agricultural source sector, the Phase I WIP specifically

described the AFO general discharge permit scheme, noting that “Maryland’s CAFO

Program is current with federal regulations having been approved by EPA on January 29,

2010 after a rigorous review of Maryland’s regulations, general permit and fact sheet.”

Phase I WIP, 2-42. The Phase I WIP described in detail the general permitting plan for

this particular type of pollutant source—AFOs—the use of best management practices in

the form of Required Plans that would be approved on a site-specific basis. See Phase I

WIP, ES-3, 2-42. Building upon the details set forth in its Phase I WIP, the Department

continued to refine its TMDL load allocation in the Phase II WIP, which were based upon

the updated Bay Model, and accounted for agricultural impacts as part of its allocations.

Phase II WIP, A-32. The development of the agricultural source component of the Phase

II WIP involved extensive meetings between the Department and MDA, and various

stakeholders.47 During these discussions, the State workgroup formed to address

agricultural source pollutants—the Water Quality Goal Implementation Team Agriculture

Workgroup—sought specific guidance from the EPA in connection with the manner in

which CAFO production areas would be factored into the TMDL load allocations and

wasteload allocations. In other words, the Phase II WIP continued to take into account the

47 The Phase II WIP describes the process that was undertaken by MDE and MDA to establish the portions of the Phase II WIP applicable to agriculture, including extensive meetings within each of the 23 counties in Maryland, that included a broad spectrum of stakeholders, including farmers, the University of Maryland Extension, Chesapeake Bay Foundation, Sierra Club, River Keepers, Maryland Farm Bureau, and the Delmarva Poultry Institute. Phase II WIP, A-30. 74 AFO general discharge permit approach—utilizing technology based effluent limitations

in the form of BMPs—for this particular pollutant source as part of the State’s overall load

analysis in connection with the Chesapeake Bay TMDL.

The Phase III WIP describes additional efforts the State has undertaken to ensure

that the agricultural sector satisfies the necessary Bay TMDL through BMPs to satisfy the

nitrogen and phosphorus reduction goals within the Bay Model. Phase III WIP, B-10. Like

the Phase II WIP, the Phase III WIP for agriculture was developed by the Department and

MDA with active engagement by various agriculture and environmental stakeholders

participating in numerous meetings across the State. Phase III WIP, B-2 –B-4. The Phase

III WIP describes the State’s efforts—coordinated through the MDA and local soil

conservation districts—to inspect BMPs, verify that they relate to an NRCS standard, and

to ensure that they are functioning as intended as far as nitrogen and phosphorus reduction

within the Bay Model, and are satisfying water quality standards. Phase III WIP, B-9 – B-

11.

The Department has determined that AFOs operating in compliance with the general

discharge permit are not generally expected to cause or contribute to a violation of the

water quality standards. That said, the Department’s position “is that it will impose

additional water quality based effluent limitations if—during the permit review process or

at any time after the issuance of permit coverage—the Department determines that they are

necessary to protect, maintain, and restore water quality and the existing and designated

uses of waters of the State.”

75 The Department’s consistently stated position has been incorporated into the general

discharge permit terms since the issuance of the 2009 General Permit. Turning to the

language of the 2019 General Permit, it expressly acknowledges that there may be

instances in which BMPs may be insufficient to address water quality standards. The

permit specifically states that “[a]dditional TMDLs and wasteload allocations (WLAs) may

be determined for nutrients in tidal waters. If WLA assessment for nutrients in tidal waters

or a later assessment of wastewater discharged from these operations indicates that WLAs

are required, additional or alternative controls or monitoring may be required.” 2019

General Permit, Part VII.K (emphasis added). The 2019 General Permit also states that

“the Department may require, during the permit review process, and at any time after the

issuance of the permit coverage, additional [best management practices]” to ensure that the

permit provides effluent discharge controls consistent with the Bay TMDL and its

wasteload allocations. 2019 General Permit, Part VII.K.2 (emphasis added). For AFOs

within the Chesapeake Bay watershed, the 2019 General Permit states that the additional

measures may include the additional best management practices outlined in the WIP. Id.

In addition, “[i]f the Department, in its sole discretion, determines that this General

Discharge Permit is not adequately protective of state waters at an operation, the

Department may require any person authorized by this permit to apply for an individual

State discharge permit.” 2019 General Permit, Part VII.M.2.

By its express terms, the 2019 General Permit gives the Department the authority to

impose additional pollutant “controls or monitoring” if a WLA assessment for a particular

waterway indicates it is required. The Department asserts that its decision to require

76 additional pollutant controls that are tied to an operation’s proximity to a particular

waterway and its overall health is not only reasonable, but is also consistent with the overall

approach of the TMDL process, which is to establish water quality based effluent

limitations for particular waterways.

The Department asserts that this permit condition, which provides for the

implementation of additional site-specific limits where needed, also is consistent with the

EPA NPDES Permit Writers’ Manual for CAFOs, which states that “situations could arise

where the permitting authority needs to impose more stringent requirements,” such as

where a CAFO discharges to an impaired waterbody or “where an analysis of frequency,

duration and magnitude of the anticipated discharge” indicates the “reasonable potential”

to affect water quality. EPA NPDES Permit Writers’ Manual for Concentrated Animal

Feeding Operations, February 2012, (“NPDES Permit Writers’ Manual for CAFOS”), 4-

36 (emphasis added). In other words, according to the Department, the EPA’s view is that

water quality based effluent limitations may be needed in specific instances following what

amounts to a site-specific analysis.

This has been the Department’s consistent position taken since the issuance of the

2009 General Permit. Like the Appellate Court which considered this same issue when

analyzing the permit conditions in the 2009 General Permit, we conclude that the

Department’s determination that the 2019 General Permit conditions will not cause or

contribute to the violation of the water quality standards is a determination that the

Legislature has placed within the discretion and expertise of the Department. The

77 Department’s determination is not arbitrary or capricious, and this Court will not substitute

its judgment for that of the Department.

Finally, Assateague asserts that this Court’s trilogy of cases that upheld the

Department’s permitting scheme for Municipal Separate Stormwater Sewer Systems

(“MS4”) support their position that water quality based effluent limitations are required to

be included in the AFO general discharge permit. Anacostia Riverkeeper, 447 Md. 88

(2016); Carroll County, 465 Md. at 169; Maryland Small MS4 Coal. v. Maryland Dep’t of

the Env’t, 479 Md. 1 (2022). Assateague asserts that Anacostia Riverkeeper and Carroll

County “unquestionably require the Department to establish permit limits sufficient to meet

water quality standards but confer considerable flexibility on the Department regarding how

to do so.” (Emphasis added). We completely agree with this statement. That is, under both

state and federal law: (1) the Department is required to establish permit limits sufficient to

meet water quality standards; and (2) the Department has considerable flexibility regarding

how to satisfy the water quality standards. However, Assateague appears to be arguing that

the term “water quality standards” is synonymous with “water quality based effluent

limitations.” It is not. As we explained in Carroll County, technology based and water

quality based effluent limitations are two different types of controls employed to achieve

water quality standards. Carroll County, 465 Md. at 186–88.

Because these cases involved a completely different pollutant source involving a

completely different regulatory scheme, we do not need to delve too far into them, other

than to note that, in each, this Court upheld the Department’s interpretation and application

of its regulatory authority under federal and state law to regulate stormwater management

78 permits. In Anacostia Riverkeeper, we upheld the Department’s decision to issue MS4

permits to various counties after the Department’s decision was challenged by

environmental groups. 447 Md. at 179. In that case, we determined that applicable

provisions of the Clean Water Act that address stormwater management permits, as well

as the implementing regulations, provide the Department with flexibility in connection

with its implementation of stormwater management effluent limitations established in

water pollution control permits. Id. We concluded that there, as here, the text of the statute

“does not instruct the permitting authority as to how it must ensure” consistency with water

quality standards, and the agency has “the flexibility to determine the appropriate

procedures for developing” permittee-specific limits. Id. at 136–37.

In Maryland Department of the Environment v. County Commissioners of Carroll

County, certain counties sought judicial review of their MS4 permits issued by the

Department. 465 Md. 169. We upheld the Department’s decision to include certain

impervious surface restoration requirements in addition to what is referred to as the

“maximum extent practicable” standard, determining that such requirements were lawful

and were not arbitrary or capricious. 465 Md. at 264–65. In Maryland Small MS4

Coalition v. Maryland Department of the Environment, we upheld the Department’s final

determination in connection with the issuance of other MS4 permits to other counties after

applying the doctrine of stare decisis and determining that the holdings of Carroll County

applied to that case. 479 Md. 1.

In this case, there is more than ample evidence in the record to establish that the

Department’s general permitting approach to AFOs is reasonable, and complies with the

79 Clean Water Act and Maryland’s state water pollution control law, as well as its watershed-

based approach to the Bay TMDL, which has been approved by the EPA and has been

incorporated into all three phases of the WIP. Under both the Clean Water Act and

Maryland’s water pollution control law, the Department has the authority to determine the

appropriate permitting procedures to ensure that permittees comply with water quality

standards. We determine that the Department’s AFO general discharge permit framework

is consistent with the authority given to the Department under federal and state law to

regulate particular types of pollutant sources utilizing its expertise, and is not arbitrary or

capricious.

D. The Department’s Decision to Require Plans to Address Ammonia Emissions Through Best Management Practices—Is Reasonable and Consistent with Federal and State Law

We turn next to Assateague’s permit challenges pertaining to ammonia emissions.

Ammonia is a form of nitrogen that is toxic to plant and aquatic life in large

concentrations. See EPA Development Document for the Final Revisions to the National

Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for

Concentrated Animal Feeding Operations, December 2002 (“EPA Development

Document”), 7-1; see also NPDES Permit Writers’ Manual for CAFOs, at 6-2. Nitrogen

from animal waste or litter can be released to the atmosphere as gaseous ammonia through

volatilization or denitrification. Id. It is undisputed that ammonia emissions in the form

of agricultural atmospheric deposition are a source of nitrogen to the Bay. See Phase II

WIP, A-32.

80 Assateague makes several arguments with respect to ammonia emissions and air

deposition. First, Assateague asserts that the Department “reissued the permit without any

limitations on ammonia” and states that, when developing the record and responding to

comments, the Department has consistently taken the position that, as a matter of law,

ammonia is not subject to regulation under this permit. Assateague asserts that not only

has the Department “repeatedly and categorically” excluded ammonia as a matter of law

from the 2019 General Permit, but it also contends that there is not “a single term,

condition, or limit in the Permit that even references ammonia.” Second—and somewhat

contradictory to its primary argument that ammonia emissions are not regulated in any

manner by the 2019 General Permit—Assateague argues that the Department’s regulation

of ammonia emissions does not go far enough. Assateague characterizes the Department’s

regulation of ammonia emissions as being a “discretionary approach” which, according to

Assateague, leaves the decision to regulate ammonia emissions squarely within the control

of the plan writer.

Finally, Assateague asserts that “[t]he record contains no discussion about the

Department’s current, planned, or previous exercise of discretion to impose ammonia, or

any sort of air quality [] BMPs at individual AFOs” and asserts that the record is “devoid

of any discussion of the types of site-specific ‘outdoor air quality’ conditions that might be

present at a facility or any threshold characteristics that could guide this exercise of

discretion established by the Permit.” Assateague asserts that the lack of discussion is “not

surprising” because it contends that “the record makes clear that the Department intends

not to regulate this pollutant.”

81 The Department asserts that it not only recognizes its authority to impose

technology based effluent limitations on ammonia emissions, but that it did so in the 2019

General Permit. The Department points to the plain language of the permit, as well as the

administrative record, which it contends provides substantial evidence that it intends to

regulate ammonia emissions through best management practices incorporated into an

approved Required Plan where air quality is a resource concern. As further evidence of

the Department’s determination that it has the authority to regulate and intends to regulate

ammonia emissions, the Department points to the Phase II WIP, in which it specifically

recognized that “agricultural atmospheric deposition” was one of the contributing sources

of nitrogen to the Bay and accounted for that impact in its TMDL load allocation. Phase

II WIP, A-32.48

Based upon our review of this record, there is substantial evidence contained therein

to support the Department’s stated position that it intends to regulate ammonia emissions

through technology based effluent limitations in the form of best management practices

identified in a Required Plan, which, once approved, is incorporated into the general

discharge permit.

48 Specifically, the Phase II WIP identified the following “Sources of Nitrogen to the Bay” based upon 2009 figures and the Chesapeake Bay Program Watershed Model Phase 4.3: Agriculture-Chemical Fertilizer (15%); Agriculture-Manure (17%); Agricultural Atmospheric Deposition (6%); Atmospheric Deposition – Mobile, Utilities and Industries (19%); Atmospheric Deposition – Natural (1%); Atmospheric Deposition to Tidal Waters (7%); Municipal and Industrial Wastewater (19%); Developed Lands – Chemical Fertilizer (10%); and Septic Systems (4%). Phase II WIP, A-32 (emphasis added). 82 The 2019 General Permit is the first iteration of the AFO general discharge permit

in which the Department has inserted specific permit conditions to regulate ammonia

emissions. In other words, the new permit condition imposes additional restrictions on

poultry operations where outdoor air quality is a resource concern, thereby providing

stronger environmental protections than prior permit iterations. The Department’s fact

sheet—which specifically identified the changes being made in the 2019 Draft Permit from

the 2014 General Permit—identified Part IV.D.2 as being a newly added “section on

outdoor air quality for poultry operations . . . [r]equir[ing] the appropriate NRCS Practice

Standards if air quality is a resource concern.”

The plain language set forth in Part IV.D.2 of the 2019 General Permit states that

nutrient management plans prepared for a particular facility must address any “resource

concerns” about the particular AFO’s air quality, stating: “For poultry: If outdoor air

quality is determined to be a resource concern, use appropriate NRCS Practice Standards

to address the concern.” The permit’s table of contents refers to this new condition as

implementing “Other Best Management Practices” for the “Reduction of Ammonia, dust,

and feathers.”

As discussed above, Assateague and the Poultry Industry each provided competing

written comments to this new addition—with the Poultry Industry asserting that the

Department lacked the authority to regulate air emissions in a water pollution control

permit, and Assateague asserting that the language did not go far enough. In its written

comments, Assateague acknowledged that Part IV.D.2 was “new language” that was

directed at “ammonia emissions.” Assateague’s written comments were directed at the

83 permit’s “framework,” in which the permit writer addresses “outdoor air quality” if it is

determined to be a resource concern. In Assateague’s view, because the framework for

regulating ammonia emissions “is left up to the owner or operator of the regulated AFO[,]”

“there are no pollution limits or standards in the draft permit capable of protecting waters

of the State[.]”

After reviewing the testimony and written comments received during the public

participation process, the Department prepared a report of its findings that summarized the

comments it received, identified several revisions to the draft permit in response to those

comments, and, where no changes were made, provided its explanation to support the

permit conditions. With respect to the new air emissions requirement contained in Part

IV.D.2., the Department considered the competing comments by the Poultry Industry and

Assateague, and provided a written response explaining why it was not making changes to

the permit condition—a written response that the Legislature specifically instructs us to

consider in connection with our judicial review of environmental permits. See

EN § 1-606(c) (stating that judicial review of the Department’s determination of water

pollution control permits is limited to the record compiled by the Department, including

the Department’s responses to public comments).

We reject Assateague’s argument that the Department has excluded the regulation

of ammonia emissions or air deposition “as a matter of law” and has taken the position that

it has no authority to regulate air deposition through a water pollution control permit.

Assateague’s argument is in direct conflict with the evidence in the administrative record.

In the Department’s written response to Assateague’s comments, it expressly

84 acknowledges its authority under state law to include air deposition in this permit. In

explaining its basis for including Part IV.D.2, the Department accurately stated that: “EPA

does not regulate odors or air quality through its CAFO permitting program. See generally

40 CFR 122.23.” Although the Department correctly pointed out that the EPA does not

regulate air quality through its CAFO permitting regulations, the Department also correctly

acknowledged that it has such authority under both federal and state law. In its written

comments, the Department explained that, “[w]hile MDE derives much of its NPDES

permitting authority from the EPA and the [Clean Water Act], it is authorized, as a

delegated program, to impose requirements that are more stringent than what is required

by the [Clean Water Act] or EPA’s regulations.” (Emphasis added). The above comment

reflects that the Department recognizes its legal authority to include air emissions in the

2019 General Permit.

Not only did the Department recognize its legal authority under state law to include

ammonia emissions, the Department also explained that it, in fact, “included in the draft

General Discharge Permit provisions that require AFO owners or operators to implement

BMPs in order to reduce nuisance odors and address any air quality resource concerns

using appropriate NRCS Practice Standard(s).” (Emphasis added). The Department also

explained specifically how “ammonia and ammonia deposition” would be addressed and

the types of best management practices that a permit writer is to include where air quality

is a “resource concern”:

There are several Natural Resources Conservation Service (“NRCS”) practice standards that can be implemented by AFO operators to reduce actual or potential ammonia emissions from poultry houses. NRCS Practice

85 Standard, Amendments for Treatment of Agricultural Waste, is used in poultry houses to reduce the potential for high ammonia emissions such as sodium bisulfate, aluminum sulfate, acidified clay, and ferric sulfate. These amendments are applied to the litter prior to bird placement to reduce potential high levels of ammonia, suppress ammonia volatilization from litter and reduce emissions from the poultry facilities. Modern poultry houses have internal ventilation and cooling systems. Though the primary goal of these systems is to provide bird comfort, an added benefit is that they reduce dust and feathers inside the houses. This results in less particulate matter to be discharged into the atmosphere. The emission of dust and feathers may be addressed through NRCS Practice Standards (Hedgerow Planting) or (Windbreak/Shelterbelt Establishment). The implementation of these BMPs can provide ammonia reduction and a means to reduce dust and feathers.

(Emphasis added).

The Department’s response specifically mentions implementing Natural

Resource Conservation Practice Standards that are designed and used to reduce

ammonia emissions. For example, Amendments for Treatment of Agricultural Waste

is a standard intended to “address the use of amendments to manure and other

agricultural wastes for specific purposes such as odor reduction, ammonia emissions

reduction, reduction of soluble phosphorus, etc.” USDA Natural Resources

Conservation Service, National Handbook of Conservation Practices Notice 137 (Apr.

26, 2005) (emphasis added), available at https://perma.cc/UPP8-XVTD. The

Department also mentioned Hedgerow Planting, a standard used, among other things,

to “[i]ntercept airborne particulate matter or to reduce chemical drift and odor

movement.” USDA Natural Resources Conservation Service, Conservation Practice

Standard / Hedgerow Planting (Dec. 2018), available at https://perma.cc/2W8N-XRJ4.

Similarly, the Department mentioned Windbreak/Shelterbelt Establishment, which is a

standard used, among other things, to “[i]mprove air quality by reducing and intercepting

86 air borne particulate matter, chemicals and odors.” USDA Natural Resources Conservation

Service, Conservation Practice Standard / Windbreak/Shelterbelt Establishment (Dec.

2011), available at https://perma.cc/LN2Q-7N3R.

Based upon the above-described BMPs, the Department explained that, in its

judgment, “[t]he draft General Discharge Permit contains BMPs to sufficiently minimize

AFO ammonia emissions from poultry houses therefore no revisions are necessary.”

The above written response illustrates that the Department correctly recognized its

authority to regulate ammonia emissions as part of the 2019 General Permit; considered

the public comments, including those comments made by Assateague and the Poultry

Industry related to ammonia emissions; and explained how best management practices that

are included in the NRCS Practice Standards—such as litter amendments, internal

ventilation and cooling systems, hedgerow plantings, and the establishment of

windbreak/shelterbeds—provide ammonia reduction. The Department’s decision to

regulate ammonia emissions through best management practices—with the Department’s

discretion to incorporate additional water quality controls based upon the location of a

particular operation and its proximity to a particular waterway—is reasonable and is

consistent with its authority under state law.49

49 Finally, the parties each cite County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). In that case, the question presented to the United States Supreme Court was whether pollution from an underground injection well that eventually makes its way into the Pacific Ocean could constitute a “discharge of pollutant” from a “point source” subject to regulation under the federal Clean Water Act. 140 S. Ct. at 1466. The Court held that the Act requires a permit where there is a direct discharge of a pollutant from a point source into water, or where there is a “functional equivalent” of a

87 We agree with the Department that, not only is there substantial evidence in the

administrative record for the 2019 General Permit to support the Department’s exercise of

its authority to regulate ammonia emissions through the general discharge permit, but that

the Phase II WIP also reflects that it has acknowledged this authority. The Phase II WIP

specifically identified “agricultural atmospheric deposition” as one of the contributing

sources of nitrogen to the Bay and accounted for that impact in its TMDL load allocation.

Phase II WIP, A-32. In Ms. Dalmasy’s explanation of the Department’s process for

establishing TMDLs, she explained how the load allocations “account for contributions

from atmospheric deposition . . . .” Assateague Coastkeeper, 200 Md. App. at 715. There

is substantial evidence in the record to reflect that the Department acknowledges its

authority under state law to regulate ammonia emissions through its water pollution control

permits and has, in fact, included BMPs to address ammonia emissions in this iteration of

the AFO general discharge permit.

Next, Assateague asks us to determine that the language in Part IV.D.2 is

insufficient because it contends that there is not “a single term, condition, or limit in the

Permit that even references ammonia.” The Department explains that the permit language

is sufficient because the language includes terms of art that address ammonia emissions.

discharge. Id. We determine that this case is inapposite to our analysis here. In this case, it is undisputed that agricultural ammonia emissions are a source of nitrogen pollution that impacts the Chesapeake Bay. See Phase II WIP, A-32. As discussed above, there is substantial evidence in the record that the Department acknowledges its authority under state law to regulate ammonia emissions through its water pollution control permits, and has, in fact, included BMPs to address ammonia emissions in the 2019 General Permit. 88 The terms of art are defined in other technical documents—such as the NRCS Practice

Standards—that the Permit incorporates by reference. We agree with the Department.

The 2019 General Permit states that, “[i]f outdoor air quality is determined to be a

resource concern, use appropriate NRCS Practice Standards to address the concern.” Part

IV.D.2. A “resource concern” is defined in the NRCS Planning Procedures Handbook, Title

180, § 600.2(120), as “[a]n expected degradation of the soil, water, air, plant, or animal

resource base to the extent that the sustainability or intended use of the resource is impaired.”

(Emphasis added). As it pertains to Assateague’s challenge to ammonia emissions, air

quality-based resource concerns include “airborne soil and smoke particulates that can

cause safety-related problems, machinery and structure damage, health problems, deposition

of airborne sediment in water conveyances, airborne chemical drift, odors, and fungi, molds,

and pollen.” NRCS National Planning Procedures Handbook, Title 180, § 600.2(3)

(emphasis added). As the Department explained in its written response to public comments,

the NRCS practice standards that address the generation of ammonia emissions include the

application of litter amendments, cooling and ventilation systems, the planting of hedgerows,

and the establishment of vegetated windbreaks and shelterbelts.

We agree with the Department that the 2019 General Permit incorporates sufficient

language for a licensed certified plan-writer to understand that where “air quality” is a

“resource concern” as those terms are defined in the NRSC National Planning and

Procedures Handbook—a document that has been around for more than a decade, and is

required by the Department’s and MDA’s regulations to be utilized by certified plan writers

in preparing the Required Plan for a particular operation.

89 In Anacostia Riverkeeper, one of the water groups’ challenges to the Department’s

issuance of certain stormwater management permits related to the fact that the permit

incorporated by reference the 2000 Maryland Stormwater Design Manual, which the water

group contended contravened the public participation requirements. 447 Md. at 172–73.

In rejecting the water groups’ argument, we acknowledged that the stormwater permits at

issue, indeed, relied “heavily on incorporation by reference.” Id. at 172. That said, we

noted that “such incorporation by reference, even of important documents,” did not

contravene the public participation requirements. Id. We observed that “including the best

management practices [in the stormwater management permits] would significantly

lengthen the document” and “would obfuscate other requirements” in the permit. Id. at 173

(emphasis added). Accordingly, we saw “no reason” to require that the Department include

the content of the manual in the permit itself. Id.

We approach the 2019 General Permit in a similar manner. We see no reason to

require the Department to precisely identify the BMPs that are required for ammonia

emissions. These practices are included in NRCS National Planning and Procedures

Handbook, which is available to the public. In reviewing water pollution control permits,

we will not substitute our judgment for that of the agency, and we affirm even decisions of

“’less than ideal clarity’ so long as the court can reasonably discern the agency’s

reasoning.” Carroll County, 465 Md. at 202 (citing Bowman Transp., Inc., 419 U.S. at

285–86). The Department requires that air quality be addressed—if it is determined to be

a resource concern—by utilizing the methods and technology described in the NRCS

National Planning Procedures Handbook. Because the Department is not required to

90 include the information incorporated by reference in the NRCS Planning Procedures

Handbook, and we can reasonably discern the agency’s reasoning, we conclude that the

Department’s permit conditions are not arbitrary or capricious.

To support its argument that the 2019 General Permit does not go far enough to

regulate ammonia emissions, Assateague included as part of the circuit court record a study

that has been referred to as the “Baker Study” (published as Baker, J., et al. “Modeling and

Measurements of Ammonia from Poultry Operations: Their Emissions, Transport, and

Deposition in the Chesapeake Bay,” Science of the Total Environment, 706:135290 (March

1, 2020) (https://pubmed.ncbi.nlm.nih.gov/31838459/)). Given the discussion of this study

in the briefs, it is worth addressing here.

Although the Baker Study was submitted as part of the circuit court record as an

exhibit to Assateague’s memorandum of law, it was not included in the Department’s

administrative record. Rather, a draft of that study was referenced in footnote 45 of the

written public comment submission by Assateague and other organizations. The Baker

Study was officially published on March 1, 2020—after the Department issued its Final

Determination. The Department has not challenged Assateague’s inclusion of the Baker

Study as part of the judicial record in this case, 50 instead choosing to address the merits of

the Study.

50 In undertaking our review of this permit, we are mindful of the Legislature’s directive that we confine our review of the administrative record. We also observe that, under the Department’s regulations, any supporting materials that a member of the public wishes the Department to consider must be “included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding or

91 The Baker Study modeled ammonia emissions from poultry houses on the Eastern

Shore and concluded that approximately 40% of those emissions were redeposited within

1.5 miles of the source, and approximately 70% were redeposited within 31 miles. Id. at

23–24. The Department states that, although “[t]he Baker Study is an important

contribution to the body of scientific knowledge about air emissions from poultry houses,

[] its findings are abstract and theoretical, as the study itself acknowledges.” For example,

the Department points out that the authors of the study acknowledge that the dispersion

model does not allow for land use to be considered as part of their analysis. Id. at 29.

Without land use data, the study was not able to model the extent to which ammonia

emissions actually make it into waterways because, as the study acknowledges,

“[u]nfortunately, determining the deposition to rivers, streams and tributaries would be

very difficult without land-use satellite data.” Id. at 24. The study also notes that the lack

of site-specific data about the proximity of dense forests and other vegetation is also an

“important consideration,” as those features tend to be “near rivers and waterbodies” and

thus “will likely limit direct deposition to the Bay by taking up ammonia that would

otherwise deposit to the water surface.” Id. at 29. And, the Department asserts, most

relevant here, the study acknowledges that one of its “important assumption[s]” was that

“no waste management practices or environmental technologies are used to mitigate

ammonia emissions throughout the modeling domain[,]” and that, specifically, the “use of

consist of State or federal statutes and regulations, EPA documents of general applicability or other generally available reference materials.” COMAR 26.08.04.08I(4). Because the Department has chosen to discuss the merits of the study, we shall do so as well.

92 [the BMP] of using aluminum sulfate in the poultry houses for reducing ammonia

emissions was not accounted for.” Id. at 8, 29. In other words, the study recognizes that

its modeling assumptions do not take into account any of the site-specific land uses

surrounding a particular operation, or the very BMPs that are recognized in the NRCS

National Planning and Procedures Handbook.

The Department states that the Baker Study is “an important piece of the scientific

record” and “supports the conclusion that ammonia emissions from poultry CAFOs are

cause for legitimate regulatory concern.” The Department’s view, however, is that the

Baker Study “does not compel the conclusion” that the site-specific approach that the

Department has chosen “is arbitrary, capricious, or unsuited to addressing CAFO air

emissions.” The Department explains that “science and common sense alike suggest that

site-specific factors—distance to a particular waterway, topography, surrounding land use,

vegetative cover, flock size, and fan size and direction—will determine whether gaseous

emissions from a particular CAFO are likely to result in a discharge to waters of the State.”

The Department defends its permit structure by pointing out that the Baker Study

itself reflects, and the record here makes clear, “that the generation and subsequent

deposition of ammonia emissions is subject to considerable variability and is most

accurately evaluated site by site.” The Department states that it has reasonably determined

that a site-specific analysis will help evaluate the extent to which a facility’s air emissions

raise resource concerns and identify appropriate BMPs to address those concerns. The

Department asserts that, rather than implementing a “one-size-fits-all approach,” the 2019

General Permit “requires the licensed nutrient management plan-writer to determine

93 whether outdoor air emissions present a resource concern based on site-specific

considerations, and requires the implementation of appropriate NRCS standards to address

that concern where it exists.”

We determine that it was within the Department’s discretion to require each AFO

to be assessed individually to evaluate ammonia emissions and to require appropriately

tailored BMPs to control these emissions where they present a real risk of discharge. As

this decision falls within the discretion afforded to the Department by the Legislature, we

will not substitute our judgment for that of the agency. See Carroll County 465 Md. at

202; Anacostia Riverkeeper, 447 Md. at 120. Because the Department acted reasonably in

implementing a site-specific approach to regulating outdoor air emissions, we conclude

that the Department’s decision was not arbitrary and capricious.

Finally, with respect to Assateague’s argument that the permit is insufficient

because the framework leaves unfettered discretion with the AFO owner or operator to

adopt BMPs to address ammonia emissions, we disagree. As the Department explains, its

regulations and permit conditions specifically require that a prospective permittee submit

a Required Plan prepared by a certified planner prior to the approval of permit coverage.

The Plans are subject to the public review and comment process. Moreover, unlike the

statutory provisions that prohibit contested case review for general water pollution control

permits, the regulations governing Required Plan approval provide aggrieved persons with

a right to a contested case review. Under some of the newly added terms in the 2019

General Permit, the certified plan writer is required to identify all specific resource

concerns at the particular AFO as part of the Plan’s submission, and the Plan is also

94 required to identify the distance to and name of the nearest waterway as well as the water

quality status of the watershed. 2019 General Permit, Part III.B.5. If an aggrieved person

believes that the Required Plan is insufficient and does not comply with the State’s water

quality standards, it may be challenged through the appropriate administrative proceeding.

IV.

CONCLUSION

For the reasons set forth above, we hold:

1. The Department’s AFO general discharge permit framework—which

addresses water quality standards by requiring technology based effluent limitations in the

form of best management practices that are prepared for a particular facility based upon

site-specific conditions, while retaining discretion in the Department to impose additional

water quality controls where they are necessary to protect and maintain water quality

standards of a particular waterway—is reasonable, and is consistent with federal and state

law.

2. There is substantial evidence in the record to reflect that the Department not

only acknowledges its authority to regulate ammonia emissions and air deposition through

the 2019 General Permit, but that it, in fact, has exercised this authority by requiring best

management practices to address ammonia emissions where they are determined to be a

resource concern. The Department’s decision to evaluate each AFO individually and to

require appropriately tailored best management practices to control these emissions where

they present a real risk of discharge, is reasonable and falls within the discretion afforded

95 to the Department by the Legislature under Maryland’s water pollution control law. We

will not substitute our judgment for that of the agency.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS REVERSED. COSTS TO BE PAID BY THE APPELLEE.

96 Circuit Court for Montgomery County Case No. 482915-V

Argued: November 3, 2022 IN THE SUPREME COURT

OF MARYLAND*

No. 11

September Term, 2022 ______________________________________

v.

ASSATEAGUE COASTAL TRUST ______________________________________

Fader, C.J. Watts Hotten Booth Biran Gould Eaves,

JJ. ______________________________________

Dissenting Opinion by Watts, J. ______________________________________

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Respectfully, I dissent.

Under the heading “Environmental Justice”1 in a letter to the Maryland Department

of the Environment (“the Department”), that is part of the record, several advocacy

organizations—including the Assateague Coastal Trust (“Assateague”)—expressed their

concern that the draft of the 2019 General Discharge Permit for animal feeding operations

(“AFOs”)2 issued by the Department was “a clear example of a state program or policy

1 Special Environmental Concerns—an August 2011 publication by the Natural Resources Conservation Service of the United States Department of Agriculture, which was included in the November 2014 version of the National Planning Procedures Handbook, which is part of the record—states that “environmental justice require[s] that populations . . . are not affected in a disproportionately high and adverse manner by government programs and activities affecting human health or the environment.” Unfortunately, “[d]isproportionate exposure to environmental harms in communities of color and low-income communities has been well documented in Maryland.” Aman Azhar, Center: Most Maryland state agencies get Ds and Fs on environmental justice ‘scorecard’, The Baltimore Banner (Oct. 14, 2022), https://www.thebaltimorebanner.com/ community/climate-environment/report-most-maryland-state-agencies-get-ds-and-fs-on- environmental-justice-scorecard-JTJCPB6DRVFWBMNSCCRNZIDD2U/ [https://perma.cc/J9CQ-MGB7]. 2 An animal feeding operation, or AFO, is

a lot or facility (other than an aquatic animal production facility) where the following conditions are met: (i) Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12–month period, and (ii) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

40 C.F.R. § 122.23(b)(1) (paragraph breaks omitted). Under 40 C.F.R. § 122.23(b)(2), a concentrated animal feeding operation, or CAFO, is an animal feeding operation that meets the definition of “Large CAFO” in 40 C.F.R. § 122.23(b)(4), meets the definition of “Medium CAFO” in 40 C.F.R. § 122.23(b)(6), or is designated as a concentrated animal feeding operation under 40 C.F.R. § 122.23(c), which states in pertinent part that “[t]he appropriate authority . . . may designate any AFO as a CAFO upon determining that it is a significant contributor of pollutants to waters of the United States.” Under Code of with the potential to impose disproportionate negative environmental consequences[.]”

The organizations observed that “[m]any of the lowest income areas of the state are found

in the counties with the greatest concentration of [animal feeding operations]” and that

“several of the dominant poultry producing counties also have among the highest

percentages of minority populations in Maryland.” (Footnote omitted). According to the

organizations, “[t]he enormous quantities of pollution that emanate[] from [animal feeding

operations] pose[] substantial public health risks, including from . . . emissions of

unregulated ammonia[.3]”

Upon receipt of the letter, the Department expressly declined to make any changes

to the part of the draft general discharge permit that purported to address ammonia

emissions. Some of the events that gave rise to the advocacy organizations’ concerns about

ammonia emissions are described in, among other sources, the advocacy organizations’

December 26, 2019 letter to the Department regarding “Comments on Draft General

Discharge Permit for Animal Feeding Operations” and the Department’s “Response to

Public Comments Regarding General Discharge Permit for Animal Feeding Operations”

dated July 8, 2020 as follows. Every year, animal feeding operations in Maryland produce

Maryland Regulations (“COMAR”) 26.08.01.01B(42-1), a Maryland animal feeding operation, or MAFO, is an animal feeding operation that is not a concentrated animal feeding operation and that either meets the definition of “large AFO” in COMAR 26.08.03.09A or is designated as a Maryland animal feeding operation under COMAR 26.08.03.09C(2), which states that “[t]he Department may designate as a MAFO a small or medium AFO if the Department determines that the type or location of animal waste storage or animal access to surface water is likely to cause a discharge of pollutants to ground or surface waters of this State.”

-2- hundreds of millions of chickens—and tens of millions of pounds of poultry waste.

Through a process called volatilization, poultry waste emits ammonia into the air.

Ammonia then leaves poultry houses—often while being propelled by industrial exhaust

fans—and may present a risk to the environment. Ammonia can pollute the Chesapeake

Bay by landing on the bay or one of its many tributaries. Ammonia contains nitrogen,

which causes nutrient pollution—which has been described as the main form of pollution

in the Chesapeake Bay. Nitrogen and phosphorus, another nutrient pollutant, make algae

grow, which pollutes the Bay by decreasing the amount of oxygen and increasing the

amount of toxins and bacteria. Polluted water can kill or contaminate fish and shellfish

and sicken people who drink it, otherwise come into contact with it, or eat contaminated

seafood.

After the Department issued its Notice of Final Determination to reissue the general

discharge permit, which did not contain provisions expressly limiting ammonia emissions,

Assateague petitioned for judicial review. The Circuit Court for Montgomery County

reversed, holding that, based on the plain language and legislative intent of the

Environment Article, the Department erred as a matter of law in reasoning that the water

pollution control statutes of Maryland do not apply to ammonia emissions. Specifically,

the circuit court stated that “[t]he clear intent to expand the [Clean Water Act]’s reach, and

the broadened definitions contained in the Environment Article, require the Department to

regulate ammonia as a water pollutant.” The circuit court concluded that ammonia is a

gaseous pollutant under Md. Code Ann., Env’t (1987, 2013 Repl. Vol.) (“EN”) § 9-101

and is subject to regulation by the Department under the Environment Article, that “CAFOs

-3- and MAFOs in Maryland actively emit gaseous ammonia into the Bay designating them as

dischargers of pollutants[,]” and that regulating gaseous ammonia does not expand the

Clean Water Act. The Department appealed. While this case was pending in the Appellate

Court of Maryland, Assateague filed a petition for a writ of certiorari, which we granted.

Unlike the Majority, I would not reverse the judgment of the Circuit Court for

Montgomery County in its entirety. See Maj. Slip Op. at 95-96. Rather, I would remand

the case for the circuit court to address the question of whether substantial evidence

supports the conclusion that the Department, through the use of Best Management Practices

Subsection IV.D.2 of the discharge permit, has exercised its authority to regulate ammonia

emissions that impact water quality. In my view, the Department was required to regulate

ammonia emissions under the water pollution control statutes of Maryland but, unlike the

Majority, I do not agree that it is clear that the general permit does so. Simply put, I am

not convinced that the record demonstrates the general permit was intended to and does, in

fact, subject ammonia emissions that impact water quality to regulation.

Nutrient Pollution in the Chesapeake Bay Generally

According to the United States Environmental Protection Agency (“the EPA”),

“[n]utrient pollution is one of America’s most widespread, costly and challenging

environmental problems, and is caused by excess nitrogen and phosphorus in the air and

water.” EPA, Nutrient Pollution / The Issue (updated Aug. 11, 2022), https://www.epa.

gov/nutrientpollution/issue [https://perma.cc/VK3Q-FDZN]. The EPA acknowledges that

“[n]itrogen and phosphorus are nutrients that are natural parts of aquatic ecosystems” and

“support the growth of algae and aquatic plants, which provide food and habitat for fish,

-4- shellfish and smaller organisms that live in water.” Id. The EPA points out, however, that

“[t]oo much nitrogen and phosphorus in the water causes algae to grow faster than

ecosystems can handle. Significant increases in algae harm water quality, food resources

and habitats, and decrease the oxygen that fish and other aquatic life need to survive.” Id.

According to the EPA, some large growths of algae, or algal blooms, “are harmful to

humans because they produce elevated toxins and bacterial growth that can make people

sick if they come into contact with polluted water, consume tainted fish or shellfish, or

drink contaminated water.” Id.

The EPA observes that “livestock operations[] are [] vulnerable to nutrient losses to

the air. Nitrogen can emanate from farm fields in the form of gaseous, nitrogen-based

compounds, like ammonia and nitrogen oxides. And, ammonia can be harmful to aquatic

life if large amounts are deposited from the atmosphere to surface waters.” EPA, Nutrient

Pollution / The Sources and Solutions: Agriculture (updated Nov. 4, 2021), https://www.

epa.gov/nutrientpollution/sources-and-solutions-agriculture [https://perma.cc/J9MZ-

LXXR].

Nutrients are the primary pollutants in the Chesapeake Bay. Nutrient pollution in

the form of nitrogen and phosphorus in the Chesapeake Bay is so significant that the Clean

Water Act expressly refers to it. Under the Clean Water Act, the Administrator of the EPA

“shall ensure that management plans are developed and implementation is begun by

signatories to the Chesapeake Bay Agreement[4] to achieve and maintain[] the nutrient

4 “The term ‘Chesapeake Bay Agreement’ means the formal, voluntary agreements

-5- goals of the Chesapeake Bay Agreement for the quantity of nitrogen and phosphorus

entering the Chesapeake Bay and its watershed[.]” 33 U.S.C. § 1267(g)(1)(A). Another

provision of the Clean Water Act states that “[e]ach State shall establish for the waters

identified in paragraph (1)(A) of this subsection, and in accordance with the priority

ranking, the total maximum daily load, for those pollutants which the Administrator

identifies under section 1314(a)(2) of this title as suitable for such calculation.” 33 U.S.C.

§ 1313(d)(1)(C).

Consistent with these provisions of the Clean Water Act, in coordination with “the

seven jurisdictions in the Chesapeake Bay watershed (Delaware, District of Columbia,

Maryland, New York, Pennsylvania, Virginia, and West Virginia),” in 2009, the EPA

began developing—and, in 2010, the EPA issued—the Chesapeake Bay Total Maximum

Daily Load, or TMDL, which the EPA refers to as a “‘pollution diet’” and which sets forth,

among other things, “allocations for nitrogen, phosphorus, and sediment[.]” EPA,

Chesapeake Bay TMDL Executive Summary at 3, 1 (Dec. 29, 2010), https://www.

epa.gov/sites/default/files/2014-12/documents/bay_tmdl_executive_summary_final_12.2

9.10_final_1.pdf [https://perma.cc/F3JN-R4NF]; EPA, Chesapeake Bay TMDL / Section

9. Chesapeake Bay TMDLs at 1 (Dec. 29, 2010),

executed to achieve the goal of restoring and protecting the Chesapeake Bay ecosystem and the living resources of the Chesapeake Bay ecosystem and signed by the Chesapeake Executive Council.” 33 U.S.C. § 1267(a)(2). Today, the Chesapeake Executive Council is comprised of the federal government, the Chesapeake Bay Commission, Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia. See Chesapeake Watershed Agreement at 18 (amended Jan. 24, 2020), https:// d18lev1ok5leia.cloudfront.net/chesapeakebay/documents/FINAL_Ches_Bay_Watershed _Agreement.withsignatures-HIres.pdf [https://perma.cc/AX9M-KQBD].

-6- https://www.epa.gov/sites/default/files/2014-12/documents/cbay_final_tmdl_section_9_

final_0.pdf [https://perma.cc/P8E4-XZNM]. The Chesapeake Bay Total Maximum Daily

Load “is designed to ensure that all pollution control measures needed to fully restore the

Bay and its tidal rivers are in place by 2025[.]” Chesapeake Bay TMDL Executive

Summary at 1.

Ammonia Pollution in the Chesapeake Bay

Maryland has a large poultry industry, and almost all of its operations are in the

Chesapeake Bay Watershed. In the above-mentioned letter to the Department, Assateague,

the Wicomico County Chapter of the NAACP, Chesapeake Legal Alliance, Environmental

Action Center, Environmental Integrity Project, and other advocacy organizations advised

that, according to the Delmarva Chicken Association, Inc.,5 in 2017, an estimated “306.7

million broilers[6] were raised in Maryland, producing 1.84 billion pounds of meat.” The

organizations observed that the vast majority of animal feeding operations in Maryland are

on the Eastern Shore. The organizations cited a 2015 report by the EPA indicating that

approximately 95% of animal feeding operations in Maryland are in the Chesapeake Bay

Watershed. See EPA, Maryland Animal Agriculture Program Assessment at 38 (Aug.

2015), https://www.epa.gov/sites/default/files/2015-09/documents/marylandanimala

5 The Delmarva Chicken Association, Inc. used to be named the Delmarva Poultry Industry, Inc. 6 A broiler is “a bird fit for broiling[,] especially [] a chicken that is younger and smaller than a roaster[.]” Broiler, Merriam-Webster, https://www.merriam-webster.com/ dictionary/broiler [https://perma.cc/YY3L-XLHB]. In turn, a roaster is “a bird fit for roasting[,] especially [] a young chicken larger than a broiler[.]” Roaster, Merriam- Webster, https://www.merriam-webster.com/dictionary/roaster [https://perma.cc/3JAL- ETGE].

-7- gricultureprogramassessment.pdf [https://perma.cc/24UR-T335].

Through a process called volatilization, poultry waste emits ammonia into the air.

According to the EPA, “[a]mmonia [] volatilization from poultry litter results in

accumulation of atmospheric [ammonia] in the poultry house, which is detrimental to

human and bird health and reduces poultry productivity.” EPA, Development Document

for the Final Revisions to the National Pollutant Discharge Elimination System Regulation

and the Effluent Guidelines for Concentrated Feeding Operations at 8-122 (Dec. 2002),

https://nepis.epa.gov/Exe/ZyPDF.cgi/20002UUV.PDF?Dockey=20002UUV.PDF

[https://perma.cc/JCV2-MNDQ]. In this context, “volatilization” means “pass[ing] off in

vapor[,]” and “litter” means both “material used as bedding for animals” and “material

used to absorb the urine and feces of animals[.]” Volatilize, Merriam-Webster (2023),

https://www.merriam-webster.com/dictionary/volatilize [https://perma.cc/SL5P-SUMG];

Litter, Merriam-Webster (2023), https://www.merriam-webster.com/dictionary/litter

[https://perma.cc/SFJ8-X6YH].

In a publication that is part of the record, the Environmental Integrity Project

pointed out that, even though “[a]mmonia, the pungent gas released from animal waste, is

responsible for a significant fraction of the nitrogen load to the Chesapeake Bay each

year[,]” the Chesapeake Bay Total Maximum Daily Load does not “include any limits on

ammonia emissions from agriculture, although EPA estimated emissions could be cut

about 30% at fairly low cost.” Abel Russ and Eric Schaeffer, Environmental Integrity

Project, Ammonia Emissions from Broiler Operations Higher than Previously Thought at

1, 4, (Dec. 2017), https://www.environmentalintegrity.org/wp-content/uploads/2017/12/

-8- Ammonia-Emissions.pdf [https://perma.cc/7LVD-Q3XZ] (footnote omitted). The

Environmental Integrity Project observed that, “[i]nstead, EPA is counting on the [nitrogen

oxide] reductions driven by Clean Air Act rules to keep the airborne nitrogen load low

enough to meet cleanup goals by 2025. That scenario will be undermined if ammonia

emissions prove to be higher than EPA expects.” Id. at 4.

The Environmental Integrity Project contended that this is the case—i.e., that, when

developing the Chesapeake Bay Total Maximum Daily Load, the EPA underestimated

ammonia emissions from agriculture. See id. at 1. The Environmental Integrity Project

pointed out that “[t]he largest source of ammonia emissions is livestock waste, and a large

component of that source category comes from the factory farms that produce broiler[]s.”

Id. The Environmental Integrity Project also noted that, based on data from European

broiler animal feeding operations, the EPA assumed that broilers emit 0.27 grams of

ammonia per bird per day and approximately 20,000 tons of ammonia into the Chesapeake

Bay per year. See id. at 1-2. The Environmental Integrity Project argued that it was

improper for the EPA to rely on data from European broiler animal feeding operations

because American ones raise larger birds, reuse litter much more often, and operate in a

warmer climate. See id. at 1-2. The Environmental Integrity Project stated that, based on

a survey of literature concerning American broiler animal feeding operations, their

ammonia emissions were double what the EPA assumed—i.e., broilers emit 0.54 grams of

ammonia per bird per day and approximately 40,000 tons into the Chesapeake Bay per

year. See id. at 2.

Even the Environmental Integrity Project’s numbers could be underestimates of the

-9- amount of ammonia that animal feeding operations emit into the Chesapeake Bay. In their

letter to the Department, Assateague and other advocacy organizations cited a report by the

Maryland Department of Natural Resources indicating that “[e]stimates of emissions

factors are relatively consistent in Delmarva and range from 0.47 grams of ammonia per

bird per day . . . to 0.98” grams of ammonia per bird per day. See Md. Dep’t of Natural

Resources, Broiler Industry Ammonia Emissions in the Chesapeake Bay Watershed at 6

(June 2010), https://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/

013000/013066/unrestricted/20100942e.pdf [https://perma.cc/J5S6-VXPN]. The same

range of numbers appears in a study that is part of the record concerning broiler animal

feeding operations in Pennsylvania and Kentucky. See Eileen F. Wheeler, Kenneth D.

Casey, Richard S. Gates, Hongwei Xin, Jennifer L. Zajaczkowski, Patrick A. Topper, Yi

Liang, and Anthony J. Pescatore, Ammonia emissions from twelve US broiler chicken

houses, Transactions of the ASABE,7 Vol. 49(5), at 1510 (Aug. 2006),

https://dr.lib.iastate.edu/server/api/core/bitstreams/c349d3ef-5998-44ca-8470-

a72cffee3147/content [https://perma.cc/3J3G-K3MQ].8

7 “ASABE” stands for the American Society of Agricultural and Biological Engineers. See American Society of Agricultural and Biological Engineers, About Us, https://www.asabe.org/About-Us [https://perma.cc/7HPM-XVAZ]. 8 Similarly, according to a scientific journal article that is included in the record, estimates of emission factors range from 0.035 kilograms of ammonia per bird per year (i.e., 0.1 grams of ammonia per bird per day) to 0.789 kilograms of ammonia per bird per year (i.e., 2.16 grams of ammonia per bird per day). See Jordan Baker, William H. Battye, Wayne Robarge, S. Pal Arya, and Viney P. Aneja, Modeling and Measurements of Ammonia from Poultry Operations: Their Emissions, Transport, and Deposition in the Chesapeake Bay, Science of the Total Environment, Vol. 706 (March 1, 2020), https://www.sciencedirect.com/science/article/abs/pii/S0048969719352829

- 10 - This Case

Tentative Determination and Public Hearings

On September 4, 2019, the Department issued a “Tentative Determination to Re-

Issue Permit” (“the Tentative Determination”) as to the “General Discharge Permit for

Animal Feeding Operations[,]” as well as a “Fact Sheet Supplement” as to the Tentative

Determination. Neither the Tentative Determination nor the Fact Sheet Supplement

mentioned ammonia emissions.

On October 15 and 21, 2019, the Department conducted public hearings on the

Tentative Determination. During the October 21, 2019 public hearing, a resident of Berlin

stated that any new concentrated animal feeding operation “whose design does not prevent

the discharge of ammonia or particulate matter into the surrounding air should not be

permitted within three kilometers of the surrounding waterways. This would avoid any

direct contamination of the waterways.” Additionally, a resident of Princess Anne stated

that she could “see particulate matter falling” when she used a flashlight at night and that

the Department needed to “address[] ammonia depositions in surface waters because it

goes up in the air from the exhaust fans and it comes down via rain or particulate matter

that’s falling on the ground and in the water.”

[https://perma.cc/3D6U-Y6BH] (“Modeling and Measurements of Ammonia from Poultry Operations”). The article estimated that approximately 40% of ammonia emissions from chickens are deposited within 2.5 kilometers (i.e., approximately 1.6 miles) of the animal feeding operation and that approximately 70% of ammonia emissions from chickens are deposited within 50 kilometers (i.e., approximately 31 miles) of the animal feeding operation. See id.

- 11 - Draft Permit and Conservation Practice Standards

On December 1, 2019, the Department issued a draft of a General Discharge Permit

for Animal Feeding Operations (“the draft Permit”). Best Management Practices

Subsection IV.D.2 of the draft Permit stated: “For poultry: If outdoor air quality is

determined to be a resource concern, use appropriate [Natural Resources Conservation

Service] Practice Standards to address the concern.” (Emphasis added). According to the

Department’s brief in this Court, “[a] ‘resource concern’ is a term of art, defined in the

[Natural Resources Conservation Service] National Planning Procedures Handbook, Title

180, § 600.2(120), as ‘an expected degradation of the soil, water, air, plant, or animal

resource base to the extent that the sustainability or intended use of the resource is

impaired.’” (Citation omitted).9

9 The most recent version of the National Planning Procedures Handbook does not mention ammonia. The November 2014 version of that handbook, which is part of the record, mentions ammonia on only two pages and simply observes that ammonia is a pollutant that can be in the form of particulate matter in the air and that “reducing emissions of directly-emitted particulate matter, [nitrogen oxide], ammonia, and [volatile organic compound]s from agricultural sources will help to mitigate agriculture’s contribution to concentrations of particulate matter and ozone in the ambient air.” Natural Resources Conservation Service, National Planning Procedures Handbook (amended Nov. 2014), https://directives.sc.egov.usda.gov/OpenNonWebContent.aspx?content=36483.wba [https://perma.cc/BX4X-J386]. The record contains a provision that was in the March 2003 version of the National Planning Procedures Handbook, but not in the current version or the November 2014 version—namely, Section 600.54 (“Element Criteria for [Comprehensive Nutrient Management Plan] Development”) (a) (Manure and Wastewater Handling and Storage) (2) (Considerations for Manure and Wastewater Handling and Storage) (i) (Air Quality), which addressed ammonia emissions and related matters as follows:

During the [Comprehensive Nutrient Management Plan] development process, [animal feeding operation] operators and/or owners need to consider

- 12 - The Natural Resources Conservation Service has issued several Conservation

Practice Standards that may be used once a resource concern is identified, three of which

are relevant here because the Department expressly referred to them in the decision at

issue.10 See Natural Resources Conservation Service, Conservation Practice Standards,

https://www.nrcs.usda.gov/resources/guides-and-instructions/conservation-practice-

standards [https://perma.cc/UA7Y-6BES]. The first relevant Conservation Practice

Standard is the one concerning “Amendments for Treatment of Agricultural Waste[,]”

which it defines as “[t]he addition of chemical or biological additives to manure, process

wastewater,[11] contaminated storm water runoff, or other wastes to reduce adverse effects

the impact of selected conservation practices on air quality. Air quality in and around structures, waste storage areas, and treatment sites may be impaired by excessive dust, gaseous emissions, and odors. Poor air quality may affect the health of workers, animals, and persons living in the surrounding areas. Ammonia emissions from animal operations may be deposited to surface waters, increasing the nutrient load. Proper siting of structures and waste storage facilities can enhance dispersion and dilution of odorous gases. Conservation buffers placed with regard to prevailing wind patterns can intercept movement of some airborne pollutants. Enclosing waste storage or treatment facility can reduce gaseous emissions from [animal feeding operation]s in areas with residential development.

Natural Resources Conservation Service, National Planning Procedures Handbook § 600.54(a)(2)(i) (amended Mar. 2003), https://nutrientmanagement.tamu.edu/content/ resources/nrcs_handbook.pdf [https://perma.cc/QRP2-NAB5]. 10 Although these three Conservation Practice Standards are critical to understanding the Department’s reasoning, the record extract includes only a copy of an outdated version of one and lacks a copy of either of the others. To give context to the Department’s decision and to avoid confusion, I will provide the current versions of the three Conservation Practice Standards at issue. 11 The draft Permit defined “Process wastewater” in pertinent part as

water directly or indirectly used in the operation of the [animal feeding

- 13 - on air and/or water.” Natural Resources Conservation Service, Conservation Practice

Standard / Amendments for Treatment of Agricultural Waste at 1 (Sept. 2020),

https://www.nrcs.usda.gov/sites/default/files/2022-09/Amendments_Treatment_Agricultu

ral_Waste_591_CPS_9_2020.pdf [https://perma.cc/V2QP-523P]. This Conservation

Practice Standard states that it “applies where the use of a chemical or biological

amendment is needed to alter the physical and chemical characteristics of the waste stream

as a part of a planned manure or waste management system.” Id. The Conservation

Practice Standard sets forth criteria for the labeling and instructions for use of, validation

of products used as, expected performance of, handling and storage of, and byproducts of,

amendments for treatment of agricultural waste. See id. at 1-2.

The Conservation Practice Standard states that “[t]he use of amendments to reduce

ammonia and other emissions from manure in confined spaces may allow altered

ventilation strategies at an appreciable energy savings.” Id. at 2. The Conservation

Practice Standard acknowledges, however, that “[t]he use of an amendment to reduce

ammonia emissions from manure may result in a higher nitrogen content in the manure.

Nutrient management plans may need to be revised to account for the decreased loss of

nitrogen in the manure.” Id.

The second relevant Conservation Practice Standard is the one concerning

“Hedgerow Planting[,]” which it defines as the “[e]stablishment of dense vegetation in a

operation] for any or all of the following: spillage or overflow from animal or poultry watering systems; washing, cleaning, or flushing pens, barns, manure pits, or other [animal feeding operation] facilities; direct contact swimming, washing, or spray cooling of animals; or dust control.

- 14 - linear design to achieve a natural resource conservation purpose.” Natural Resources

Conservation Service, Conservation Practice Standard / Hedgerow Planting at 1 (Sept.

2010), https://www.nrcs.usda.gov/sites/default/files/2022-09/Hedgerow_Planting_422_C

PS.pdf [https://perma.cc/CVF9-VWZ8]. This Conservation Practice Standard states that

hedgerows can “intercept airborne particulate matter” and that “[w]ater quality benefits

may arise from[ i]nfiltration and assimilation of plant nutrients.” Id. at 1, 3. The

Conservation Practice Standard sets forth several criteria, including that “[h]edgerows shall

be established using woody plants or perennial bunch grasses producing erect stems

attaining average heights of at least 3 feet persisting over winter.” Id. at 1.

The third relevant Conservation Practice Standard is the one as to “Windbreak-

Shelterbelt Establishment and Renovation[,]” which it defines as “[e]stablishing,

enhancing, or renovating windbreaks, also known as shelterbelts, which are single or

multiple rows of trees and/or shrubs in linear or curvilinear configurations.” Natural

Resources Conservation Service, Conservation Practice Standard / Windbreak-Shelterbelt

Establishment and Renovation at 1 (July 2021), https://www.nrcs.usda.gov/sites/default

/files/2022-10/Windbreak-Shelterbelt_Establishment_380_NHCP_CPS_2021.pdf

[https://perma.cc/S6AW-ZKPD]. This Conservation Practice Standard states that

windbreaks and shelterbelts can “[i]mprove air quality by intercepting airborne particulate

matter, chemicals, and odors, and/or by reducing airflow across contaminant or dust

sources[.]” Id. The Conservation Practice Standard states: “On all lands except forest land,

apply this practice to establish, enhance, or renovate windbreaks where rows of woody

plants are desired and suited for the intended purposes.” Id.

- 15 - Public Comments on the Draft Permit

In a letter to the Department dated December 26, 2019, the Executive Directors of

the Environmental Action Center and the Chesapeake Legal Alliance stated that they were

commenting on the draft Permit on behalf of both of their advocacy organizations, as well

as Assateague, the Wicomico County Chapter of the NAACP, the Center for Progressive

Reform, the Environmental Integrity Project, the Maryland League of Conservation

Voters, Concerned Citizens Against Industrial CAFOs, Waterkeepers Chesapeake, and the

Protectors of the St. Martin River. The organizations requested that the Department revise

the draft Permit to “account[] for and mitigate[] the enormous amounts of ammonia

produced from each poultry house and manure storage shed.” The organizations advised

that animal feeding operations on the Eastern Shore add millions of tons of ammonia to the

air every year and that much of that ammonia is deposited into the Chesapeake Bay and its

tributaries.

The organizations pointed out that Subsection IV.D.2 of the draft Permit stated that

Conservation Practice Standards were to be used “[i]f outdoor air quality is determined to

be a resource concern[.]” The organizations also pointed out that “the framework for

determining whether or not something is a resource concern is left up to the owner or

operator of the regulated [animal feeding operation].” The organizations contended that,

as such, there were “no pollution limits or standards in the draft permit capable of

protecting waters of the State, [animal feeding operation] workers, or downwind

communities from the massive amount of ammonia emitted by large poultry [animal

feeding operations.]”

- 16 - In another letter to the Department, dated December 26, 2019, the Maryland

Executive Director of the Chesapeake Bay Foundation requested that the Department

revise the draft Permit to “require additional mandatory site-specific terms for [animal

feeding operations] to adequately control ammonia emissions and resulting nitrogen

deposition to ensure that permitted [animal feeding operations] are able to comply with all

applicable water quality standards and the General Permit’s zero-discharge standard.” The

Chesapeake Bay Foundation stated “that ammonia emissions from growing poultry [animal

feeding operations] throughout the Delmarva peninsula are more than just a neighborhood

nuisance.” The Chesapeake Bay Foundation asserted that ammonia “emissions

cumulatively present an unquantified load of air deposition of nitrogen to the Bay” and “an

unpermitted discharge in violation of the Clean Water Act and the General Permit’s zero-

discharge standard.” (Footnote omitted).

The Chesapeake Bay Foundation acknowledged that the Department had indicated

that certain animal feeding operations needed to implement the Conservation Practice

Standard as to “Amendments for Treatment of Agricultural Waste[.]” The Chesapeake Bay

Foundation pointed out, however, that only some of the Concentrated Animal Feeding

Operation Comprehensive Nutrient Management Plans12 included even one best

management practice, whereas other such plans included “no practices to address ammonia

12 A Comprehensive Nutrient Management Plan, or CNMP, is “a conservation plan that is specifically for an” animal feeding operation and that “identifies conservation practices and management activities that, when implemented as part of a conservation system, will manage sufficient quantities of manure, waste water, or organic by-products associated with a waste management facility.” 7 C.F.R. § 1466.3.

- 17 - emissions.”

The Department’s Final Determination, Permit, and Response to Public Comments

On July 8, 2020, the Department issued a “General Discharge Permit for Animal

Feeding Operations” (“the Permit”), a “Notice of Final Determination” as to the Permit, a

“Fact Sheet Supplement” as to the Permit, and a “Response to Public Comments Regarding

[the Permit.]” Subsection 1 of Section M, titled “Individual or General Permit Coverage,

Termination, and Closure[,]” within Part VII titled “General Conditions” of the Permit,

stated that “[e]ach [Maryland animal feeding operation] and [concentrated animal feeding

operation] shall be registered either under this General Discharge Permit or an individual,

site-specific discharge permit.” The Fact Sheet Supplement stated that “[e]ach permittee

must develop, submit with its [notice of intent], and implement a site-specific Required

Plan” and that the Department would “use the Required Plan to identify site-specific permit

terms and conditions. The enforceable terms and conditions of the Required Plan are

incorporated by reference into the [] Permit.” (Citation omitted).

The Permit defined “Required Plan(s)” as the plans that concentrated animal

feeding operation and Maryland animal feeding operation “applicants are required to

submit to the Department. . . . These Plans include, but are not limited to, [Comprehensive

Nutrient Management Plans] and [Nutrient Management Plans] and any other plans

deemed necessary to perform a proper review of the application by the Department.”

The Permit was substantively identical to the draft Permit with respect to

- 18 - ammonia.13 In the Permit, as in the draft Permit, the only mention of ammonia was in the

label of Best Management Practices Subsection IV.D.2 (“Reduction of ammonia, dust, and

feathers”) in the table of contents. Subsection IV.D.2 of the Permit was identical to that

subsection of the draft Permit, stating: “For poultry: If outdoor air quality is determined

to be a resource concern, use appropriate [Natural Resources Conservation Service]

Practice Standards to address the concern.” (Emphasis added).14 Neither the Notice of

13 To be sure, as the Majority notes, the Department added limited new language indicating that “the certified plan writer is required to identify all specific resource concerns at the particular AFO as part of the Plan’s submission, and the Plan is also required to identify the distance to and name of the nearest waterway as well as the water quality status of the watershed.” Maj. Slip. Op. at 94-95 (citation omitted). This language imposes no new substantive requirements under Best Management Practices Subsection IV.D.2. In other words, this additional language does not require that a plan writer or animal feeding operation owner take any action other than to “identify” resources concerns (which ostensibly the plan writer was already required to do under the best management practices) and nearest waterways as well as water quality status. The new language does not impose any requirements for any further action whatsoever. 14 Subsection IV.D.1 of the Permit stated: “Odors: The facility shall be operated at all times to minimize nuisance odors associated with process wastewater treatment and storage operations from escaping the facility boundaries.” Subsection IV.D.3 of the Permit stated:

Additional Best Management Practices for Organic Poultry Operations:

a) The [Comprehensive Nutrient Management Plan] and [Nutrient Management Plan] for an organic poultry [concentrated animal feeding operation] or [Maryland animal feeding operation] shall account for the uncollected manure that is deposited in the Poultry Pasture to assure that the vegetation on the Poultry Pasture is adequate to assimilate the manure nutrients deposited.

b) The [Comprehensive Nutrient Management Plan] and [Nutrient Management Plan] shall describe how the Poultry Pasture will be operated to ensure that there is no discharge of manure, litter, or process wastewater from the Poultry Pasture into surface waters of the State.

- 19 - Final Determination nor the Fact Sheet Supplement mentioned ammonia.

Consistent with the letter submitted to the Department on behalf of Assateague and

other advocacy organizations, as well as the letter to the Department on behalf of the

Chesapeake Bay Foundation, one of the Department’s summaries of public comments

stated that the Permit would “not adequately address air pollution (particulate

matter/ammonia depositions) from poultry house exhaust fans and manure sheds that are

deposited in the air and make their way to surface waters causing health and water quality

impairments.” In one of its responses to the public comments received, the Department

reasoned that it was not necessary to revise the draft Permit to address the advocacy

organizations’ concerns about ammonia pollution because the draft Permit incorporated

best management practices “to sufficiently minimize [animal farming operation] ammonia

emissions from poultry houses[.]” The Department concluded that “[a]mmonia

emissions/ammonia deposition have been considered and addressed to the extent

permissible under the Clean Water Act and the state’s water pollution control law and

implementing regulations with the requirement of several” Conservation Practice

Standards.

The Department stated that, under Subsection IV.D.2 of the Permit, animal feeding

operations would be required to implement best management practices to “address any air

quality resource concerns using appropriate” Conservation Practice Standards. The

Department stated that the Conservation Practice Standard concerning “Amendments for

Treatment of Agricultural Waste” “is used in poultry houses to reduce the potential for

high ammonia emissions” and is “applied to [] litter prior to bird placement to reduce

- 20 - potential high levels of ammonia, suppress ammonia volatilization from litter and reduce

emissions from the poultry facilities.” The Department stated that the Conservation

Practice Standards concerning “Hedgerow Planting” and “Windbreak-Shelterbelt

Establishment and Renovation” could also “provide ammonia reduction[.]”

Proceedings in the Circuit Court

Assateague petitioned for judicial review of the Final Determination. Afterward,

the parties filed memoranda. In its memorandum, the Department stated that Assateague

contended that the Permit was “legally deficient because it does not place controls on the

gaseous emissions of pollutants from [concentrated animal feeding operations], including

ammonia, that might later be deposited into state waters from the atmosphere.” (Citation

omitted). The Department argued that “[t]he simple reason for this omission is that

regulating air emissions through a water discharge permit is outside the scope of both the

[Clean Water] Act and Maryland’s water pollution control statutes.” (Footnote omitted).

On January 26, 2021, the circuit court conducted a hearing.

On March 11, 2021, the circuit court issued an order reversing the Final

Determination and remanding the Permit to the Department “to mandate effluent

limitations for ammonia and other water quality based effluent limitations.” On the same

date, the circuit court issued a memorandum opinion holding that, based on the plain

language and legislative intent of the Environment Article, the Department erred as a

matter of law in reasoning that the water pollution control statutes of Maryland do not apply

to ammonia emissions.

The circuit court concluded that ammonia meets the definition of “pollutant” in EN

- 21 - § 9-101(g) because ammonia is a gaseous substance that contains nitrogen and is emitted

from poultry waste through volatilization. The circuit court determined that excluding

ammonia from the definition of “pollutant” in EN § 9-101(g) would be a nonsensical

construction that would greatly inhibit the Department’s ability to protect the Chesapeake

Bay. The circuit court also concluded that animal feeding operations’ actions with regard

to ammonia meet the definition of “discharge” in EN § 9-101(b) because animal feeding

operations use industrial exhaust fans to emit ammonia onto the waters of this State.

The circuit court disagreed with the Department’s contention that the circuit court’s

holding would require the Department to regulate all forms of water pollution that originate

from the air—i.e., to issue water discharge “permits for things as varied as ‘cars and

chimneys.’” (Quoting Chem. Weapons Working Grp., Inc. (CWWG) v. U.S. Dep’t of the

Army, 111 F.3d 1485, 1490 (10th Cir. 1997)). The circuit court concluded that its holding

would not expand the Department’s responsibility to issue water discharge permits beyond

what the water pollution control statutes of Maryland prescribe because the record reflects

that animal feeding operations’ discharges of ammonia are specific, calculable events that

the Department must regulate to fulfill its responsibility to administer those statutes. In

other words, the circuit court determined that the Department’s position was at odds with

“[t]he concrete and measurable nature of the pollution in this case[.]” The circuit court

stated that it would not address Assateague’s contention that substantial evidence did not

support the Department’s decision. On April 12, 2021, the Department noted an appeal.

Petition for a Writ of Certiorari and Motions for Leave to File New Briefs

While this case was pending in the Appellate Court, Assateague petitioned for a writ

- 22 - of certiorari, raising the following two issues:

1. Whether the Maryland Department of the Environment (“MDE”) erred in issuing a General Discharge Permit for Animal Feeding Operations without including controls for ammonia emissions, when Maryland water pollution control laws unambiguously require regulation of ammonia emissions?

2. Whether the Clean Water Act and the more stringent Maryland Water Pollution Control laws require water discharge limitations that take into account impaired receiving waters (i.e. water quality-based effluent limitations) where effluent limitations based solely on minimum levels of treatment achieved by technology are ineffective?

The Department filed an answer to the petition and a conditional motion for leave to file a

new principal brief, stating that it did not oppose the grant of the petition. Assateague filed

a motion for leave to file a new brief.15 On June 3, 2022, this Court granted the petition

and the motions. See Md. Dep’t of the Env’t v. Assateague Coastal Tr., 479 Md. 63, 276

A.3d 610 (2022).

Standard of Review

Md. Code Ann., State Gov’t (1984, 2021 Repl. Vol.) § 10-222(h)(3) generally

concerns judicial review of a decision by an administrative agency, stating in pertinent part

that a court may reverse such a decision where “any substantial right of the petitioner may

have been prejudiced because a finding, conclusion, or decision: . . . (iv) is affected by any

[] error of law; (v) is unsupported by competent, material, and substantial evidence in light

of the entire record as submitted; . . . or (vii) is arbitrary or capricious.” (Paragraph breaks

15 When each party filed a motion to file a new brief in this Court, it had already filed a brief in the Appellate Court.

- 23 - omitted).16

Clean Water Act and Federal Regulations

In Md. Dep’t of Env’t v. Anacostia Riverkeeper, 447 Md. 88, 96, 134 A.3d 892,

896-97 (2016), we described the National Pollution Discharge Elimination System

established by the Clean Water Act as follows:

Under the Clean Water Act (“CWA”), the discharge of pollutants is illegal. 33 U.S.C. § 1311. Through the National Pollution Discharge Elimination System (“NPDES”), 33 U.S.C. § 1342, either the Environmental Protection Agency (“EPA”) or an EPA-approved state, such as Maryland, may issue permits exempting a discharger from this prohibition. See Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 265 (4th Cir. 2001). [The Department] is the authority in Maryland that administers the NPDES program. Code of Maryland Regulations (“COMAR”) 26.08.04.07. An NPDES permit, however, does not give a discharger carte blanche. “Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). These limits are called effluent limitations. See 33 U.S.C. § 1362(11) (defining an effluent limitation as “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance”). The type of discharge determines the type of limitations the permit must impose on the discharger.

(Footnote omitted).

In Md. Dep’t of the Env’t v. Cnty. Comm’rs of Carroll County, 465 Md. 169, 186-

88, 214 A.3d 61, 71-72 (2019), we described the requirements under the Clean Water Act

16 EN § 1-601(d)(1) specifically concerns judicial review of a decision by the Department to issue a general discharge permit, stating in pertinent part that “[j]udicial review shall be on the administrative record before the Department and limited to objections raised during the public comment period[.]”

- 24 - as to water quality standards, technology-based effluent limitations, and water quality-

based effluent limitations as follows:

Under the Act, “water quality standards” are the benchmark for clean water. For each water body covered by the Act, states submit water quality standards to the EPA for review and approval. The standards are to be based on the water body’s “designated use” (e.g., public water supply, fishing, recreational use) and include criteria necessary to support that use (e.g., specific limits on certain pollutant concentrations). See 33 U.S.C. § 1313(c)(2)(A); 40 CFR §§ 130.3, 131.6; COMAR 26.08.02.01-.03. To achieve water quality standards, the Act requires that discharge permits include pollution controls for point sources. 33 U.S.C. § 1311(b). The Act calls these controls “effluent limitations” – “effluent” being the material discharged by a point source. Effluent limitations may be “technology based” or “water quality based.” See EPA, NPDES Permit Limits, https://perma.cc/L4G6-24K9; Natural Resources Defense Council v. EPA, 808 F.3d 556, 563 (2d Cir. 2015). Technology based effluent limitations are generally the first round of controls in the effort to achieve water quality standards. See 33 U.S.C. § 1311(b)(1)(A). They “represent the minimum level of control that must be imposed in a permit[.]” 40 CFR § 125.3(a). But even the most stringent technology based effluent limitations have not achieved water quality standards in thousands of the nation’s waterways. Congress anticipated this possibility in 1972 by retaining water quality standards “as a supplementary basis for effluent limitations ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.” EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205 n.12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). If technology based limitations do not achieve the water quality standards, permits may include “any more stringent limitation ... necessary to meet water quality standards” – i.e., “water quality based effluent limitations.” 33 U.S.C. § 1311(b)(1)(C); 40 CFR § 130.7(c). Thus, regardless of whether a waterway is over-polluted due to point sources, nonpoint sources, or some mixture of both, the Act authorizes the imposition of water quality based controls on point sources, in addition to the most stringent technology based controls. These two types of effluent limitations differ in their reference point and in their strategies for reducing pollution. For technology based limitations, the reference point is the source, and the strategy is to deploy pollutant-reducing technology at that source regardless of its contribution of pollutants to the waterway. By contrast, for water quality based effluent limitations, the reference point is the waterway, and the strategy is for the

- 25 - point source to implement any additional actions (beyond the already required technologies) necessary to achieve the applicable water quality standard.

(Footnotes omitted) (ellipses in original).

33 U.S.C. § 1311(b)(1)(C) sets forth a requirement for States to establish limitations

necessary to meet water quality standards, stating:

In order to carry out the objective of this chapter there shall be achieved . . . not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter.

33 U.S.C. § 1311(g)(1) sets forth the EPA’s authority to classify ammonia as a

pollutant for purposes of the Clean Water Act, stating:

The Administrator, with the concurrence of the State, may modify the requirements of subsection (b)(2)(A) of this section with respect to the discharge from any point source of ammonia, chlorine, color, iron, and total phenols (4AAP) (when determined by the Administrator to be a pollutant covered by subsection (b)(2)(F)) and any other pollutant which the Administrator lists under paragraph (4) of this subsection.

Consistently, Table IB (List of Approved Inorganic Test Procedures) of 40 C.F.R. § 136.3

(Intro Identification of Test Procedures), which is within Part 136 (Guidelines Establishing

Test Procedures for the Analysis of Pollutants) of Subchapter D (Water Programs) of

Chapter I (EPA) of Title 40 (Protection of Environment) of the Code of Federal

Regulations, identifies criteria for measuring “Ammonia (as N[itrogen])[.]”

Water Pollution Control Statutes and Regulations of Maryland

As their names suggest, Subtitle 3 (Water Pollution Control) of Title 9 (Water, Ice,

- 26 - & Sanitary Facilities) of the Environment Article, as well as Subtitle 4 (Water Pollution

Control and Abatement) of Title 4 (Water Management) of the Environment Article,

contain the water pollution control statutes of Maryland. The subtitle that is relevant here

is Subtitle 3 of Title 9 of the Environment Article, which contains statutes concerning

discharge permits. See EN §§ 9-322 to 9-333. Subtitle 4 of Title 4 of the Environment

Article primarily contains statutes concerning oil. See EN §§ 4-406 to 4-411.1, 4-420.

EN § 9-101 contains definitions that apply throughout Title 9 of the Environment

Article. See EN § 9-101(a). Under EN § 9-101(b), “‘[d]ischarge’ means: (1) The addition,

introduction, leaking, spilling, or emitting of a pollutant into the waters of this State; or (2)

The placing of a pollutant in a location where the pollutant is likely to pollute.” (Paragraph

breaks omitted). Under EN § 9-101(g), “‘[p]ollutant’ means: (1) Any waste or wastewater

that is discharged from: (i) A publicly owned treatment works; or (ii) An industrial source;

or (2) Any other liquid, gaseous, solid, or other substance that will pollute any waters of

this State.” (Paragraph breaks omitted). EN § 9-101(h) defines “pollution” as follows:

“Pollution” means any contamination or other alteration of the physical, chemical, or biological properties of any waters of this State, including a change in temperature, taste, color, turbidity, or odor of the waters or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance into any waters of this State, that will render the waters harmful or detrimental to:

(1) Public health, safety, or welfare;

(2) Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses;

(3) Livestock, wild animals, or birds; or

(4) Fish or other aquatic life.

- 27 - Code of Maryland Regulations (“COMAR”) 26.08.01.01B(20), (66), and (67) contain

identical, or substantively identical, definitions of “discharge,” “pollutant,” and

“pollution,” respectively.

Although EN § 9-101(j) contains a definition of “solid waste,” neither that statute,

EN § 1-101 (which contains definitions that apply throughout the Environment Article),

nor EN § 9-301 (which contains definitions that apply throughout Subtitle 3 of Title 9 of

the Environment Article) sets forth a definition of “waste.” That said, under COMAR

26.08.01.01B(98), “‘[w]aste’ means industrial waste and all other liquid, gaseous, solid, or

other substances which will pollute any waters of this State.”

EN § 9-302(a) and (b) set forth the purpose and legislative policy, respectively, of

Subtitle 3 of Title 9 of the Environment Article. EN § 9-302(a) states that “[t]he purpose

of this subtitle is to establish effective programs and to provide additional and cumulative

remedies to prevent, abate, and control pollution of the waters of this State.” EN § 9-302(b)

sets forth the legislative policy of Subtitle 3 of Title 9 of the Environment Article as

follows:

Because the quality of the waters of this State is vital to the interests of the citizens of this State, because pollution is a menace to public health and welfare, creates public nuisances, harms wildlife, fish, and aquatic life, and impairs domestic, agricultural, industrial, recreational, and other legitimate beneficial uses of water, and because the problem of water pollution in this State is closely related to the problem of water pollution in adjoining states, it is the policy of this State:

(1) To improve, conserve, and manage the quality of the waters of this State;

(2) To protect, maintain, and improve the quality of water for public

- 28 - supplies, propagation of wildlife, fish, and aquatic life, and domestic, agricultural, industrial, recreational, and other legitimate beneficial uses;

(3) To provide that no waste is discharged into any waters of this State without first receiving necessary treatment or other corrective action to protect the legitimate beneficial uses of the waters of this State;

(4) Through innovative and alternative methods of waste and wastewater treatment, to provide and promote prevention, abatement, and control of new or existing water pollution; and

(5) To promote and encourage the use of reclaimed water in order to conserve water supplies, facilitate the indirect recharge of groundwater, and develop an alternative to discharging wastewater effluent to surface waters, thus pursuing the goal of the Clean Water Act to end the discharge of pollutants and meet the nutrient reduction goals of the Chesapeake Bay Agreement.

EN § 9-322 sets forth a general prohibition on discharging pollutants into the waters

of this State, stating that, “[e]xcept as provided in this subtitle and Title 4, Subtitle 4 of this

article and the rules and regulations adopted under those subtitles, a person may not

discharge any pollutant into the waters of this State.” Consistently, COMAR

26.08.04.01B(1) states that “[a] person may not commit any of the following acts except

as authorized by a discharge permit issued by the Department: []Except as provided in

COMAR 26.08.02.09A(3) and Regulation .08 of this chapter, discharge into the waters of

this State any waste or wastewater regardless of volume.” (Paragraph break omitted). EN

§ 9-323 sets forth a requirement for operators of concentrated animal feeding operations

and other facilities to hold discharge permits.

EN § 9-324(a) states that “the Department may issue a discharge permit if the

Department finds that the discharge meets: (1) All applicable State and federal water

quality standards and effluent limitations; and (2) All other requirements of this subtitle.”

- 29 - EN § 9-328(b) sets forth the conditions under which the Department may renew a discharge

permit (as it did here), stating:

Before a discharge permit expires, the Department may renew the discharge permit for another term:

(1) After administrative review in accordance with the rules and regulations that the Department adopts;

(2) After notice and opportunity for public hearing on the subject;

(3) On the condition that the discharge meets or will meet:

(i) Any applicable State or federal water quality standards or effluent limitations; and

(ii) Any applicable requirement of this subtitle; and

(4) If the permit holder pays all application and permit fees assessed by the Department under this subtitle.

EN § 9-327 sets forth the conditions under which the Department may refuse to

issue a discharge permit, stating, among other things, that the Department may refuse to

issue a discharge permit if the Department finds that issuance of the permit would violate

any State or federal law or any rule or regulation adopted under any State or federal law.

EN § 9-326 concerns conditions on discharge permits, stating in relevant part: “(a)(1) The

Department may make the issuance of a discharge permit contingent on any conditions the

Department considers necessary to prevent violation of this subtitle.”

Although Subtitle 3 of Title 9 of the Environment Article does not mention

ammonia, Sections H (Acute Numeric Toxic Substance Criteria for Ammonia for the

Protection of Fresh Water Aquatic Life (Table 1)), I (Chronic Numeric Toxic Substance

Criteria for Ammonia, Expressed as a 30-day Average, for the Protection of Fresh Water

- 30 - Aquatic Life (Tables 1 and 2)), J (Saltwater and Estuarine Acute Criteria for Ammonia),

and K (Saltwater and Estuarine Chronic Criteria for Ammonia) of COMAR 26.08.02.03-2

(Numerical Criteria for Toxic Substances in Surface Waters) do so, indicating that

ammonia is a toxic substance.

Maryland Case Law

This is only the fourth administrative case in which we have addressed in detail the

substance of the Clean Water Act and/or the water pollution control statutes of Maryland.

The other three such cases are Anacostia Riverkeeper, 447 Md. 88, 134 A.3d 892, Carroll

County, 465 Md. 169, 214 A.3d 61, and Md. Small MS4 Coal. v. Md. Dep’t of the Env’t,

479 Md. 1, 276 A.3d 573 (2022) (per curiam). Unlike this case, all three of these cases

involved discharge permits for municipal separate storm sewer systems, or MS4s. See

Anacostia Riverkeeper, 447 Md. at 95, 134 A.3d at 896; Carroll Cnty., 465 Md. at 188, 214

A.3d at 72-73; Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 575 (per curiam). The

three cases involved interpretation of 33 U.S.C. § 1342(p)(3)(B)(iii), which states that

“[p]ermits for discharges from municipal storm sewers . . . shall require controls to reduce

the discharge of pollutants to the maximum extent practicable,” or MEP.

In Anacostia Riverkeeper, 447 Md. at 126, 134 A.3d at 915, this Court held, among

other things, that a requirement in discharge permits for municipal separate storm sewer

systems that counties restore 20% of impervious surfaces complied with the “maximum

extent practicable” standard. We observed that Maryland’s watershed improvement plan,

or WIP, “includes what we refer[red] to as the adaptive management approach” or “the

‘iterative’ process,” “whereby additional or alternative practices are implemented if

- 31 - existing programs are not meeting target reductions.” Id. at 128 & n.44, 134 A.3d at 916

& n.44 (citation omitted). Specifically, the discharge permit for municipal separate storm

sewer systems stated that “‘[best management practice] and program modifications shall

be made’ if the Counties fail to comply with the Permits or fail to show progress in meeting

[wasteload allocation] of EPA-approved [total maximum daily loads].” Id. at 128, 134

A.3d at 916 (footnote omitted). We pointed out that the relevant regulation adopted by the

EPA did “not instruct the permitting authority as to how it must ensure” “that effluent limits

are consistent with [wasteload allocation] assumptions and requirements.” Id. at 136, 134

A.3d at 920-21 (citations omitted). We noted that, “[i]nstead, the EPA set a minimal,

flexible requirement in which the permitting authority is to design a scheme where effluent

limits are compatible or in agreement with [wasteload allocations].” Id. at 136, 134 A.3d

at 921 (citation omitted). Immediately afterward, we quoted guidance from the EPA in the

Federal Register observing that the regulation “gives the permitting authority the flexibility

to determine the appropriate procedures for developing water quality-based effluent

limits.” Id. at 137, 134 A.3d at 921 (cleaned up). “[W]e conclude[d] that the nature of the

schedules in the restoration plans d[id] not require [the Department] to incorporate those

plans into the Permits by modification” because the “adaptive management approach is the

true enforcement mechanism that leads to compliance with an effluent limitation or other

limitation.” Id. at 174, 134 A.3d at 943-44 (cleaned up).

In Carroll County, 465 Md. at 264, 214 A.3d at 118, we held, among other things,

that “[t]he Department may lawfully include an impervious surface restoration requirement

in a[ municipal separate storm sewer system] permit without reference to the [‘maximum

- 32 - extent practicable’] standard.” We observed that, “[t]o achieve water quality standards, the

Act requires that discharge permits include pollution controls for point sources.” Id. at

186, 214 A.3d at 71 (citing 33 U.S.C. § 1311(b)). We also noted that municipal separate

storm sewer systems “differ from typical ‘end-of-pipe’ point sources in certain respects”

and that “a discharge permit for a[ municipal separate storm sewer system] differs from

that for a typical point source.” Carroll County, 465 Md. at 188-89, 214 A.3d at 73.

A dissenting opinion concluded, among other things, that the Department “was not

authorized to set forth in Frederick County’s [municipal separate storm sewer system]

permit requirements that exceed the ‘maximum extent practicable’ standard[.]” Id. at 266,

214 A.3d at 119 (Watts, J., dissenting). In another dissenting opinion, Judge Getty stated

that he “would scale back the agency deference doctrine as recognized in Maryland.” Id.

at 281, 214 A.3d at 128 (Getty, J., dissenting).17

In Md. Small MS4 Coal., 479 Md. at ___ & n.2, 276 A.3d at 576 & n.2 (per curiam),

in a per curiam opinion that Judges McDonald, Hotten, Biran, and Adkins joined, we

declined to overrule Carroll County and again held that conditions based on the EPA’s

regulations in the general permit for municipal separate storm sewer systems were not

17 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the title of the Judges serving on this Court to that of Justices. The name change took effect on December 14, 2022. And, on the same day, this Court amended Maryland Rule 1-202, effective immediately, to state that the title of “Judge” includes a Justice of the Supreme Court of Maryland and the title of “Senior Justice” means a Senior Judge who has been designated to sit on the Court in a case or other judicial matter pending before the Court. For purposes of this opinion, I will use the then-existing title of “Judge” when referring to opinions authored or joined by members of the Court before December 14, 2022.

- 33 - illegal on the ground that they exceeded the “maximum extent practicable” standard. We

observed that, in Carroll County, 465 Md. at 186, 214 A.3d at 71, we had “noted that, in a

typical [National Pollution Discharge Elimination System] permit, there would be no

question that the Department is to consider water quality standards in designing a permit –

in fact, such consideration is required by the Act.” Md. Small MS4 Coal., 479 Md. at ___,

276 A.3d at 584 (per curiam). We also pointed out that, in Carroll County, 465 Md. at 188-

89, 214 A.3d at 73, we had “observed that a[ municipal separate storm sewer system]

permit is not a typical [National Pollution Discharge Elimination System] permit;

[municipal separate storm sewer systems] differ from ‘end-of-pipe’ point sources and have

a different permit standard.” Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 584 (per

curiam).

In a concurring opinion that Judges Hotten and Adkins joined, Judge McDonald

indicated that the water pollution control statutes of Maryland, which are more stringent

than the Clean Water Act, could provide the Department with the authority to implement

requirements that exceed the “maximum extent practicable” standard. See id. at ___, 276

A.3d at 604 (McDonald, J., concurring). Another opinion concurring in the judgment only,

which Chief Judge Getty and Judge Booth joined, stated that, it disagreed with the

substance of Carroll County, but would adhere to the principle of stare decisis and not

overrule the case at the time. See Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 606-

07 (Watts, J., concurring in the judgment only). In another opinion concurring in the

judgment only, Judge Booth stated that she would have joined the dissent in Carroll County

but was bound by the doctrine of stare decisis and would not overrule that case at the time.

- 34 - See Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 607-08 (Booth, J., concurring in

the judgment only) (joined by J. Getty and J. Watts).

In addition to Anacostia Riverkeeper, Carroll County, and Maryland Small MS4

Coalition, another Maryland case involving the Clean Water Act and/or the water pollution

control statutes of Maryland is Assateague Coastkeeper v. Md. Dep’t of the Env’t, 200 Md.

App. 665, 669-70, 28 A.3d 178, 181-82 (2011), in which the Appellate Court of Maryland

upheld a discharge permit for animal feeding operations. The appellants contended that,

under the EPA’s regulations, the Department was required to “either ensure compliance

with any applicable [wasteload allocation]/[total maximum daily load] or make a case-by-

case determination of any necessary [water quality-based effluent limitations].” Id. at 719,

28 A.3d at 210 (internal quotation marks omitted). The appellants also argued “that these

site-specific requirements ‘c[ould ]not be reconciled with the broad authorization to

discharge’ contained in the” discharge permit. Id. at 719, 28 A.3d at 210-11.

The Appellate Court pointed out that a Final Decision Maker, or FDM, of the

Department found “that the imposition of [water quality-based effluent limitations] is likely

to be quite site-specific and therefore may be more appropriately imposed through the

[notice of intent] process, including the approval of the [Comprehensive Nutrient

Management Plan].” Id. at 720, 28 A.3d at 211 (footnote omitted). The Appellate Court

stated: “[T]his is a factual finding to which we give deference to the agency.” Id. at 720,

28 A.3d at 211. The Appellate Court observed that, under the discharge permit,

concentrated animal feeding operations were required to submit to the Department for

approval a Comprehensive Nutrient Management Plan, which would address methods of

- 35 - protecting water quality, and that such plans were subject to public review and comment

before approval. See id. at 721, 28 A.3d at 211. The Appellate Court concluded: “It was

within the province of [the Department] to determine that this process is sufficient to ensure

that the issuance of new permits will not cause or contribute to the violation of water quality

standards. We will not substitute our judgment for that of the agency on this issue.” Id. at

721, 28 A.3d at 211-12.

Application of the Principles Above to this Case

In my view, a remand is necessary for the circuit court to decide whether the

Department’s final determination to use Best Management Practices Subsection IV.D.2 of

the discharge permit to address ammonia emissions is supported by substantial evidence

and not arbitrary and capricious. Stated otherwise, a remand is necessary to determine

whether substantial evidence supports the Department’s position that Best Management

Practices Subsection IV.D.2 regulates ammonia emissions from an animal feeding

operation that impact water quality. If the circuit court is satisfied that there is such

substantial evidence, it would then be necessary for the court to determine whether Part

IV.D.2 complies with Maryland’s water pollution control statutes.

Before this Court, the Department has agreed that Maryland law identifies ammonia

emissions as a pollutant and contends that it devised site-specific evaluations in Best

Management Practices Subsection IV.D.2 to address such emissions. But the record

reflects that the Department developed the best management practices at a time that it

claimed that it was not required under the Clean Water Act or Maryland law to regulate

ammonia emissions. Thus, the best management practices provisions were plainly not

- 36 - developed for the purpose later stated by the Department.

Subsection IV.D.2 is labeled “Other Best Management Practices” and states in its

entirety: “For poultry: If outdoor air quality is determined to be a resource concern, use

appropriate [Natural Resources Conservation Service] Practice Standards to address the

concern.” By its plain language, Subsection IV.D.2 concerns outdoor air quality, not water

pollution; indeed, there is no indication in the language of Subsection IV.D.2 that its

ultimate purpose is to regulate water pollution. Subsection IV.D.2 allows animal feeding

operations owners to hire licensed plan writers to determine whether there is a resource

concern and then to determine whether to recommend practices such as putting up hedges

or adding amendments to chicken litter to address the concern. The Department is not

involved in these decisions at all.

Under these circumstances, Best Management Practices Subsection IV.D.2 does not

appear to even effectively regulate air quality, let alone water pollution. Part IV.A.1.b

provides that, if the “plan writer”18 identifies a resource concern, it is up to the plan writer

18 Under Part III.B.5, the person responsible for identifying resource concerns at a concentrated animal feeding operation is not an employee of the Department, but rather is the same person who writes the concentrated animal feeding operation’s comprehensive nutrient management plan. A comprehensive nutrient management plan includes a nutrient management plan and a conservation plan. See COMAR 26.08.01.01B(13-1). In turn, a nutrient management plan addresses management of “the amount, placement, timing, and application of animal manure, fertilizer, biosolids, or other plant nutrients to minimize nutrient loss or runoff and to maintain the productivity of soil when growing agricultural products.” COMAR 15.20.08.03B(27). Meanwhile, a conservation plan—also known as a soil conservation and water quality plan—addresses, among other things, “[s]torage for animal manure and litter[.]” COMAR 26.08.01.01B(83-1)(a). The person who writes the concentrated animal feeding operation’s comprehensive nutrient management plan will be either an employee of the concentrated animal feeding operation or someone hired by the concentrated animal feeding operation.

- 37 - which Conservation Practice Standards, issued by the Natural Resources Conservation

Service, the concentrated animal feeding operation should use to address the concern. To

be sure, the plan writer must be certified by the Maryland Department of Agriculture, but

the plan writer is either a nutrient management consultant hired by the concentrated animal

feeding operation itself or a person who owns, operates, or has a legal interest in the

concentrated animal feeding operation. See Md. Code Ann., Agric. (1974, 2016 Repl.

Vol.) § 8-803(a), (g)(1); COMAR 15.20.04.02B(1).

The Department is not involved in either of these determinations—identifying a

resource concern or identifying Conservation Practice standards to address the concern—

which are made by the plan writer, who is hired by the animal feeding operation or is

associated with the animal feeding operation. In short, nothing in the discharge permit or

the applicable COMAR requires the Department to independently determine under

Subsection IV.D.2 whether resource concerns exist or which Conservation Practice

Standards the animal feeding operation should use to address such concerns.

Plainly, the Department could have imposed different requirements in the discharge

permit to address ammonia emissions but did not do so. At oral argument, the Court

pointed out that the discharge permit allows animal feeding operations to identify resource

concerns and choose Conservation Practice Standards. The Court asked the Department’s

counsel whether it would be possible for the Department to impose requirements or best

management practices under its control rather than the animal feeding operations. The

Department’s counsel responded: “It would be possible.”

To be sure, members of the public may comment on and challenge comprehensive

- 38 - nutrient management plans. And, the Department must notify the public when it receives

a notice of intent or a comprehensive nutrient management plan. See COMAR

26.08.04.09N(3)(b), (d). The Department must also notify the public when it preliminarily

approves the plan, and the notice must provide for a thirty-day period for public comment.

See COMAR 26.08.04.09N(3)(j). The Department must conduct a public hearing on the

preliminary approval upon timely request, and the Department may conduct one on its own

initiative. See COMAR 26.08.04.09N(3)(k)(i), (ii). A person aggrieved by the

Department’s final approval of the plan may request a contested case hearing. See

COMAR 26.08.04.09N(3)(l)(ii).

But, this process does not mean that Subsection IV.D.2 effectively regulates

ammonia emissions. At oral argument, the Court asked the Department’s counsel how, as

a practical matter, a member of the public would be able to challenge a comprehensive

nutrient management plan that did not identify outdoor air quality as a resource concern.

In other words, the Court asked how anyone other than an animal feeding operation plan

writer would be able to identify a resource concern under Best Management Practices

Subsection IV.D.2. The Department’s counsel responded that, although ammonia is

invisible, ventilation fans in poultry houses expel other materials, such as dust, feathers,

litter, and dry poultry manure, which may be detected by the public. The Department’s

counsel stated that, at public hearings on comprehensive nutrient management plans, there

are often many local residents who complain of odors or have otherwise made their own

assessments without entering the property of the animal feeding operation.

These anecdotal circumstances are not an effective substitute for the Department’s

- 39 - regulation of ammonia emissions. It would be unreasonable to expect local residents and

other interested parties (who cannot enter the property of an animal feeding operation) to

determine for themselves whether ammonia emissions are causing a resource concern, or

to hire their own nutrient management consultant (who could not enter the property at

issue). From my perspective, there is no effective way that an interested party could

challenge a comprehensive nutrient management plan that does not indicate that ammonia

emissions pose a resource concern. And, even if there were such a challenge, it is unclear

whether noncompliance with the best practice set forth in Subsection IV.D.2 would have

any consequence at all.

The Department contends that Subsection IV.D.2 regulates ammonia emissions but

in actuality the Department drafted the provision while it was under the mistaken belief

that it was not allowed to regulate such emissions. The record demonstrates this. In its

response to public comments that the discharge permit did not adequately address ammonia

emissions, the Department stated that “[a]mmonia emissions/ammonia deposition have

been considered and addressed to the extent permissible under the Clean Water Act and

the state’s water pollution control law[.]” In a memorandum filed in the circuit court, the

Department stated that the discharge permit did not place controls on ammonia emissions

because “regulating air emissions through a water discharge permit is outside the scope of

both the [Clean Water] Act and Maryland’s water pollution control statutes.” Following

this explanation, in a footnote, the Department stated that “[n]evertheless, the Department,

in response to public comments it received on the draft GDP, included several provisions

that require the implementation of BMP’s to minimize nuisance odors and to address

- 40 - outdoor air quality if it is determined to be a resource concern.” The Department’s own

statements demonstrate that it did not design Best Management Practices Subsection

IV.D.2 for the purpose that it now maintains that the provision serves—i.e., the regulation

of ammonia emissions.19

I would remand the case to the circuit court to allow the parties to address, and the

court to determine, whether Part IV.D.2 regulates ammonia emissions as water pollution,

and, if so, whether the provision passes muster under Maryland’s water pollution control

statutes. Judicial review of the Department’s issuance of a discharge permit in the circuit

court is based on the administrative record. See EN §§ 1-601(d)(1), 1-606(c). One possible

outcome is that the circuit court would remand the case to the Department so that it could

issue a new statement or fact sheet explaining the basis for its decision, which is a required

part of the administrative record under EN § 1-606(c)(4).20 In any event, from my

perspective, it is clear that a remand to the circuit court is necessary to assess the

Department’s contention that Subsection IV.D.2 regulates ammonia emissions as water

pollution.

19 Although in its response to comments from the public, the Department acknowledged that it was authorized to impose requirements more stringent than those of the Act and stated that it had included in the Permit best management practices “to reduce nuisance odors and address any air quality resource concerns using appropriate NRCS Practice Standard(s)[,]” this statement does not mean, or make clear at all, that the Department accepted or understood that it was authorized to regulate ammonia emissions as a pollutant under Maryland law. 20 Under EN § 1-605(c), an action for judicial review of the Department’s issuance of a discharge permit “shall be conducted in accordance with the Maryland Rules.” In turn, under Maryland Rule 7-209, a court may remand an action for judicial review “to the agency for further proceedings[.]”

- 41 - The record demonstrates that the Department’s Final Determination to include Best

Management Practices to regulate ammonia emissions as impacting water quality was

based not on an exercise of discretion by the Department, a finding of fact by the

Department, or use of the Department’s expertise in environmental science, but rather was

based on the Department’s conclusion that it was not authorized to address ammonia

emissions as water pollution through the Permit. This is made clear by, among other

documents, the Permit itself, whose real operative provisions do not mention ammonia

emissions. By its plain language, Subsection IV.D.2 of the Permit (through which, the

Department argues, it regulates ammonia emissions as water pollution) applies only where

“outdoor air quality”—not water quality—“is determined to be a resource concern[.]”

Even though Subsection IV.D of the general permit addresses air emissions from poultry

operations where a site-specific evaluation finds that water quality impacts would occur,

this determination is made without input from the Department and by plan writers who are

compensated by the poultry operation owners, and would be difficult for any member of

the public to meaningfully challenge. In my view, the Department was required to exercise

its discretion and apply its expertise in environmental science to determine how to regulate

ammonia emissions as water pollution through the Permit, and it is not clear from the record

that the Department has done so.

The plain language of the Permit demonstrates that ammonia emissions are not, and

were not intended by the Department to be, subject to regulation as water pollution through

the Permit. The word “ammonia” appears only in the table of contents of the Permit—

specifically, in the title of the advisory Best Management Practices Subsection IV.D.2

- 42 - (“Reduction of ammonia, dust, and feathers”) of the Permit. As explained, Subsection

IV.D.2 of the Permit states in its entirety: “If outdoor air quality is determined to be a

resource concern, use appropriate [Natural Resources Conservation Service] Practice

Standards to address the concern.” Nothing in the provision reflects that ammonia

emissions impact water quality, not just air pollution. Subsection IV.D.2 of the Permit

places no effluent limitations whatsoever—whether technology-based or water quality-

based—on ammonia emissions as water pollution.

Even for what it is—namely, a provision relating to air pollution rather than water

pollution—Subsection IV.D.2 of the Permit is toothless. Under the best management

practice, it is up to an individual who writes the Required Plan for an animal feeding

operation to determine whether “outdoor air quality” is “a resource concern[.]” The writer

of a Required Plan and the animal feeding operation are, at a minimum, in a contractual

relationship. Thus, the writer, although trained and certified, may have a financial

incentive not to make a determination that would be costly for the animal feeding operation

to address. To put it colloquially, having a writer of a Required Plan determine whether

outdoor air quality is a resource concern is like having a fox guard the henhouse.

Even in the event that the writer of a Required Plan would determine that outdoor

air quality is a resource concern, Subsection IV.D.2 of the Permit merely sets forth the

aspirational directive to “use appropriate” Conservation Practice Standards “to address the

concern.” Nothing in the best management practice provision requires use of any particular

Conservation Practice Standard, any particular number of such standards, or any particular

method of following such standards. Nor does Subsection IV.D.2 of the Permit set forth

- 43 - any benchmarks, parameters, or criteria for determining whether an animal feeding

operation’s use of Conservation Practice Standards has sufficiently addressed the resource

concern related to outdoor air quality (such as by, say, reducing dust emissions by a

specified percentage or limiting feather emissions to a specified weight). Indeed, under

Subsection IV.D.2 of the Permit, an animal feeding operation is not required to end,

resolve, or even mitigate a resource concern relating to outdoor air quality—to the contrary,

the animal feeding operation need only “address the concern” and that is solely if it chooses

to do so. In sum, given that Subsection IV.D.2 of the Permit is not even a mandatory

regulation of ammonia emissions as air pollution in any meaningful way, the provision

certainly is not a regulation of ammonia emissions that affect water quality.

On this point, as explained above, not one, but two other documents reinforce what

the plain language of the Permit makes clear—namely, that ammonia emissions are not,

and were not intended by the Department to be, subject to regulation as water pollution

through the Permit. First, in the Department’s response to comments from Assateague and

other advocacy organizations about the failure of the Permit to adequately address

ammonia emissions, the Department stated that “[a]mmonia emissions/ammonia

deposition have been considered and addressed to the extent permissible under the Clean

Water Act and the state’s water pollution control law and implementing regulations with

the requirement of several [Natural Resources Conservation Service] practices including

litter amendments and hedgerows/shelterbelts.” This statement—which expressly refers

to the Clean Water Act and the water pollution control statutes of Maryland—demonstrates

that the Department’s failure to regulate ammonia emissions beyond the best management

- 44 - practices was based on its described interpretation of those statutes, rather than an exercise

of discretion, fact-finding, or the use of any expertise. In its response, the Department said

the quiet part out loud and made clear that it had reasoned that the most that it was

authorized to do with regard to ammonia emissions in the Permit was to direct animal

feeding operations to use Conservation Practice Standards where outdoor air quality is

determined to be a resource concern.21

The Department’s memorandum in the circuit court is the second document showing

the same. In its memorandum, the Department stated that Assateague “argue[d] that the

[Permit] is legally deficient because it does not place controls on the gaseous emissions of

pollutants from [concentrated animal feeding operations], including ammonia, that might

later be deposited into state waters from the atmosphere.” Next, the Department stated:

“The simple reason for this omission is that regulating air emissions through a water

discharge permit is outside the scope of both the Act and Maryland’s water pollution

control statutes.” (Emphasis added) (footnote omitted). In no uncertain terms, the

21 It is of no moment that, in the Department’s response to public comments about animal feeding operations using industrial exhaust fans to blow ammonia emissions out of poultry houses, the Department stated that “[m]odern poultry houses have internal ventilation and cooling systems[,]” which “result[] in less particulate matter to be discharged into the atmosphere.” For one thing, the Department’s vague statement leaves unclear how many (if any) animal feeding operations in Maryland have internal ventilation and cooling systems, what percentage (if any) of animal feeding operations in Maryland have such systems, and whether poultry houses with such systems lack industrial exhaust fans. Additionally, even where a poultry house lacks industrial exhaust fans, that circumstance would not prevent ammonia emissions from being discharged onto the waters of this State. As Assateague and other advocacy organizations pointed out in their letter to the Department, “if we are to presume that an [animal feeding operation] does not ‘discharge[,]’ we would be forced to accept as reality an illogical and physically impossible result: that what goes into a poultry house never comes out.”

- 45 - Department candidly acknowledged that it had not regulated ammonia emissions through

the Permit and that the reason why was that it was of the view that doing so would have

been outside the scope of the Clean Water Act and the water pollution control statutes of

Maryland. Together with the plain language of Subsection IV.D.2 and the Department’s

response to public comments, the Department’s memorandum in the circuit court

eliminates any doubt that, based on its earlier interpretation of the Clean Water Act and the

water pollution control statutes of Maryland, the Department designed the Permit without

considering regulating ammonia emissions as water pollution.

The Department has abandoned this interpretation on appeal. In its opening brief in

this Court, the Department argues that “[t]he dispute before this Court thus is not whether

[the Department] can regulate gaseous emissions under State law[,]” that “the plain

language of the general permit demonstrates that the Department has that authority[,]” and

that, “[r]ather, the dispute here is over how [the Department] has chosen to assess and

regulate gaseous emissions discharging to State waters.” (Emphasis in original). And, in

its opening briefs in both appellate courts, the Department asserted that, based on “the

science[,]” the Department determined that “site-specific” (as opposed to “across-the-

board”) regulation of ammonia emissions from animal feeding operations was appropriate.

The record belies multiple aspects of the Department’s assertions. For one thing, as

discussed above, by its plain language, the Permit does not subject ammonia emissions to

regulation as water pollution at all—whether on a “site-specific” basis or on an “across-

the-board” basis. In addition, “site-specific” regulation and “across-the-board” regulation

are not mutually exclusive. Furthermore, the Department does not bring to the Court’s

- 46 - attention, and I could not find, anything in the record that indicates that its decision to

implement Subsection IV.D.2 to address ammonia emissions that impact water quality was

based on science. To the contrary, as discussed above, both the Department’s response to

public comments and its memorandum in the circuit court show that the Department’s

decision was based on an interpretation of the Clean Water Act and the water pollution

control statutes of Maryland that it has now abandoned.

Because ammonia meets the definition of a “pollutant” in EN § 9-101(g) and animal

feeding operations’ actions with regard to ammonia meet the definition of “discharge” in

EN § 9-101(b), under EN § 9-324(a)(2), the Department was not authorized to issue the

Permit without regulating ammonia emissions as water pollution through the Permit.

Although I would conclude that the Department must regulate ammonia emissions as water

pollution through the Permit and the record does not establish that it has done so, I would

refrain from offering an opinion on how the Department must do so. In other words, I

would decline Assateague’s invitation to hold that the Department was required to

implement across-the-board water quality-based effluent limitations on ammonia

emissions. The question of how to regulate ammonia emissions that impact water quality

through the Permit is a matter committed to the Department’s discretion and expertise, and

I would not invade the Department’s province by prescribing the methods that the

Department must use to discharge its statutory duties. The problem is that it is not at all

clear that the Department exercised its discretion in the first place to determine how to

regulate ammonia emissions as water pollution through the Permit.

A remand of the case would further the purpose of the water pollution control

- 47 - statutes of Maryland “to establish effective programs and to provide additional and

cumulative remedies to prevent, abate, and control pollution of the waters of this State.”

EN § 9-302(a). It would also honor the General Assembly’s express policy “[t]o improve,

conserve, and manage the quality of the waters of this State” “[b]ecause the quality of the

waters of this State is vital to the interests of the citizens of this State” and “because

pollution is a menace to public health and welfare[.]” EN § 9-302(b)(1). In addition, a

remand of the case would help to ensure that Maryland does its part to meet the goal under

the Chesapeake Bay Total Maximum Daily Load “that all pollution control measures

needed to fully restore the Bay and its tidal rivers are in place by 2025[.]” Chesapeake Bay

TMDL Executive Summary at 1.22

For the above reasons, I would remand the case to the circuit court for a

determination as to whether substantial evidence supports a finding that Best Management

Practices Subsection IV.D.2 in fact regulates ammonia emissions as water pollution on a

site-specific basis and whether the Best Management Practices comply with the

requirements of the Act and Maryland statutes.

22 Both the EPA and the Chesapeake Bay Foundation have determined “that Maryland and other bay states are not on track to meet the 2025 deadline for reducing pollution in the Chesapeake Bay, a goal established in 2010 by the EPA under the federal Clean Water Act.” Cadence Quaranta, Clean water advocates and elected officials urge next Maryland governor to do more to protect the Chesapeake Bay, The Baltimore Banner (Oct. 19, 2022), https://www.thebaltimorebanner.com/community/climate-environment/ clean-water-advocates-and-elected-officials-urge-next-maryland-governor-to-do-more-to- protect-the-chesapeake-bay-FGXLPX4B7VAV7DJUPHVGID55MM/ [https://perma.c c/MG4V-2VGD]. The executive director of the Environmental Integrity Project has stated that “‘[f]orty-two percent of the nitrogen, 55% of the phosphorus and 60% of the sediment in the bay comes from agriculture. . . . We’ve relied on voluntary programs and exhortation to persuade the agricultural industry to do its part, [and] it’s just not working.’” Id.

- 48 - Therefore, respectfully, I dissent.

- 49 -